Can a North Carolina lawyer copy another lawyer's brief or form language without attribution?

Plain-English summary

This is the revised version of the opinion; the State Bar Council adopted an earlier version on January 23, 2009, withdrew it on July 24, 2009, and adopted this revision on October 23, 2009. It addresses whether a lawyer may use another lawyer's written work without attribution.

The opinion concludes it is not dishonest or unethical for a lawyer to incorporate excerpts from another lawyer's written work, such as a brief, into the lawyer's own document without attribution. It expresses no view on the separate legal question of whether a lawyer has intellectual property rights in briefs, pleadings, or other documents. The opinion reasons that lawyers routinely draw on others' work (firm and client brief banks, briefs found in a library or on a listserv), that the common law is built on precedent and the reuse of successful arguments, that origin is often impossible to trace, and that reuse serves the client by reducing preparation time and cost and by promoting competent, well-researched briefs (RPC 190). The lawyer must still provide competent representation under Rule 1.1, which means verifying the citations in the borrowed excerpt to ensure the content and interpretation of case law, statutes, and secondary sources are correct. Although consent and attribution are not required, the opinion states that when a lawyer copies verbatim and knows the author, the better and more professional practice is to cite the source.

The opinion applies the same conclusion to several variations: there is no duty to report a lawyer who uses another's brief language; a lawyer may use a firm brief-bank document verbatim without attribution; and a lawyer may copy clauses from a contract, pleading, or discovery request prepared by someone else. A lawyer may also sign a brief written by a supervised associate without naming the associate, so long as the lawyer does not charge the client for work the lawyer did not perform. The one prohibited variation is the "canned" newsletter: a firm may not distribute a newsletter purchased from a commercial publisher under the firm's name in a way that portrays the material as the firm lawyers' original work, because that is misleading and violates Rule 7.1(a).

In practice

Under the North Carolina rules as they stood at the time of the opinion, using another lawyer's written work without attribution is not, by itself, a rules violation; the controlling duty is competence (Rule 1.1), which requires the lawyer to verify the borrowed material's citations and interpretation. Per the opinion, there is no duty to report a lawyer who reuses such work, and a lawyer may sign a supervised associate's brief without attribution provided the client is not charged for work the lawyer did not perform.

Per the opinion, the line is drawn at misrepresenting authorship to clients: a firm may not distribute a commercially produced "canned" newsletter under its own name as though its lawyers wrote it, because doing so is misleading under Rule 7.1(a). The opinion also notes that when a lawyer copies verbatim and knows the author, a source citation is the better, more professional practice.

Common questions

Q: Can I copy pages from another lawyer's brief into mine without crediting them?

A: Yes. The opinion concludes it is not dishonest or unethical to incorporate excerpts from another lawyer's brief without attribution or consent, though you must verify the borrowed material under Rule 1.1.

Q: If I borrow another lawyer's work, do I still have to check it?

A: Yes. The opinion concludes the lawyer must provide competent representation under Rule 1.1, which means verifying any citations in the excerpt so the content and interpretation of case law, statutes, and secondary sources are correct.

Q: If I see another lawyer copy someone's brief, must I report it to the State Bar?

A: No. The opinion concludes there is no duty to report, because the unattributed use is not itself unethical.

Q: Can my firm send clients a purchased newsletter as if we wrote it?

A: No. The opinion concludes that distributing a "canned" newsletter under the firm's name, portraying it as the firm lawyers' original work without disclosing the true authorship, is misleading and violates Rule 7.1(a).

Q: Can I sign a brief an associate wrote under my supervision without naming the associate?

A: Yes, so long as you do not charge the client for work you did not perform.

Background and rules framework

The opinion applies North Carolina Rule 1.1 (competence) and Rule 7.1(a) (false or misleading communications about a lawyer's services), the analogues of Model Rules 1.1 and 7.1. It frames the reuse of written work as ordinary practice constrained by the duty to verify borrowed material and by the prohibition on misrepresenting authorship to clients.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / NC Rule 1.1 (competence; verifying borrowed material)
• MR 7.1 / NC Rule 7.1(a) (false or misleading communications, applied to a "canned" newsletter)

Other opinions cited:

• NC RPC 190 (1994): the reuse of others' written work serves the client by reducing preparation time and promoting competent briefs.

See also

• ABA Formal Op. 07-446: Ghostwriting for Pro Se Litigants
• NC State Bar 2009 FEO 16: Website Case Results

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2008-formal-ethics-opinion-14/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Editor's note: The original version of this opinion was adopted by the State Bar Council on January 23, 2009, and withdrawn by the council on July 24, 2009, in order to publish this proposed revision.

Inquiry #1:

Lawyer A submitted a brief to the trial court that contained eight pages, verbatim, from an appellate brief previously drafted and filed by Lawyer B in an unrelated case. Lawyer B does not work for Lawyer A's firm. Lawyer A did not credit Lawyer B for the copied portion of the brief, or obtain Lawyer B's permission to incorporate the eight pages, entirely unchanged, into his own brief. Lawyer A added references to additional relevant case law. Lawyer A properly cited all court opinions, legal treatises, and published or copyrighted works upon which he had relied. The only pre-existing writings included within his brief without attribution were the relevant legal arguments submitted by Lawyer B in an earlier appeal.

Did Lawyer A violate any Rule of Professional Conduct through his unattributed use of eight pages of Lawyer B's brief?

Opinion #1:

No. It is not dishonest or unethical for a lawyer to incorporate excerpts from the written work of another lawyer in a brief or other written document without attribution. No opinion is expressed, however, on the legal question of whether a lawyer has intellectual property rights in the lawyer's written works including briefs, pleadings, discovery, and other legal documents.

Lawyers often rely upon and incorporate the work of others when writing a brief, whether that work comes from a law firm brief bank, a client's brief bank, or a brief that the lawyer finds in a law library or posted on a listserv on the Internet. By its nature, the application of the common law is all about precedent, which invites the re-use of arguments that have previously been successful and have been upheld. It would be virtually impossible to determine the origin of the legal argument in many briefs. Moreover, the utilization of the work of others in this context furthers the interests of the client by reducing the amount of time required to prepare a brief and thus reducing the charge to the client.See RPC 190 (1994). It also facilitates the preparation of competent briefs by encouraging lawyers to use the most articulate, carefully researched, and comprehensive legal arguments.

When using the work of another, the lawyer must still provide competent representation. Rule 1.1. This means that the lawyer must verify any citations in the excerpt to insure that the content and interpretation of caselaw, statute, and secondary sources is correct.

Although consent and attribution are not required, if a lawyer uses, verbatim, excerpts from another's brief and the lawyer knows the identity of the author of the excerpt, it is the better, more professional practice, for the lawyer to include a citation to the source.

Inquiry #2:

If Lawyer B, or another lawyer, learns that Lawyer A submitted a brief to the court that contained verbatim portions of a brief previously drafted and filed by Lawyer B, does the lawyer have a duty to report Lawyer A to the State Bar?

Opinion #2:

No. See Opinion #1 above.

Inquiry #3:

Lawyer A's law firm maintains a "brief bank," consisting of memoranda of law and briefs previously written by members of the firm and filed with trial or appellate courts. Is it a violation of the Rules of Professional Conduct for Lawyer A to use, verbatim, a portion of a memorandum or brief contained in the brief bank without attribution?

Opinion #3:

No. See Opinion #1 above.

Inquiry #4:

Is it a violation of the Rules of Professional Conduct for Lawyer A to sign his name to a brief, written by an associate at Lawyer A's direction and under Lawyer A's supervision, without including the associate's name on the brief?

Opinion #4:

No, so long as Lawyer A does not charge the client for work he did not perform.

Inquiry #5:

Is it a violation of the Rules of Professional Conduct for Lawyer A to copy, verbatim and without attribution, clauses from a contract, pleading, discovery request, or other similar document prepared by someone else for use in a similar document that Lawyer A is preparing for a client?

Opinion #5:

No. It is not dishonest or misleading to incorporate such clauses in similar documents without consent of the author or attribution. See Opinion #1 above.

Inquiry #6:

May a law firm distribute a "canned" newsletter to its clients that is obtained from a commercial publishing company without disclosing that the lawyers in the law firm did not actually author the material?

Opinion #6:

No. If the content of a newsletter is portrayed as the original work of the firm's lawyers, the distribution of the newsletter under the law firm's name, without disclosing the true authorship of the material contained in the newsletter, is misleading and a violation of Rule 7.1(a).