M Squared

November 10th, 2023 at 1:07 PM ^

Corporate lawyer here.  Not only is it not frowned upon, it can lead to malpractice not to use the exact same series of words across contracts because a deviation therefrom may impute an intended difference when none was in fact intended (i.e., trying to reach the same result but with different words).  (I'm being intentionally shorthanded about this.)  In transactional practice, if another law firm lifts your language, in a practical sense, it's a badge of honor more so than anything else (although attorneys will fight about who really crafted it first). 

Joined: 07/02/2009

MGoPoints: 1908

ImLawBoy

November 10th, 2023 at 1:57 PM ^

In-house contracts lawyer here.  I love seeing language I know we penned show up in edits from one of the outside firms who frequently represent our customers.  (Although sometimes it's because they're using language that was a concession on our part to close another deal, and we'd really rather not see it duplicated!)

Joined: 10/22/2014

MGoPoints: 648

superstringer

November 10th, 2023 at 2:36 PM ^

I am unfamiliar with the case, but this might be the distinction:  A lawyer has an ethical obligation to ensure the accuracy of everything submitted to a court. Block-copying someone else's brief, including case sites, without reading them to verify the citations will get you in trouble. (Like the lawyer who had ChatGPT write his brief... he never bothered to check that AI was literally making up case citations that didn't exist. Yes, that's a real story from this year.) But, if you block-copy a brief, and verify everything in it, I see no reason you can't use it. I've been a lawyer 30 years, filed thousands of papers and briefs. If something is directly useful and says it perfectly, use it. Just... check it all first.

The lawyer's signature on the bottom of the brief isn't saying the lawyer wrote it. It's saying the lawyer is representing to the Court that the brief states the party's position and the lawyer attests to the accuracy of what's in the brief. Who knows who wrote the brief-- could be junior associates, co-counsel, etc.

Joined: 02/04/2009

MGoPoints: 18175

mgo한국

November 10th, 2023 at 3:44 PM ^

That was both unbelievable because of the shocking dereliction of the ethical responsibility to, at a bare minimum, check that the citations are to real cases and verify that they say what you're representing to the court that they say—and yet very believable given the unfamiliarity that some old-school lawyers have with computer technology. He seems to have assumed it was some fancy AI version of Westlaw and not just a predictive-language model.

https://apnews.com/article/artificial-intelligence-chatgpt-courts-e15023d7e6fdf4f099aa122437dbb59b

Joined: 01/12/2010

MGoPoints: 733

superstringer

November 10th, 2023 at 1:20 PM ^

No.  If its a contract, the words are not expressive of the author's work or ideas -- the words are creating the terms of a going-forward relationship (or resolving a past relationship). The words are thus not just words, but are the exact terms of the relationship. If you intend the same relationship between contracts, you use the same words.

Briefs are not subject to copyright protection (I believe there is caselaw on that)--when you submit a brief publicly, it becomes public. And a brief is not meant to be the product of a lawyer's personal skills, like a professor's article; it's meant to advocate the client's position but is written by a lawyer.  So a lawyer has no basis to claim plagiarism if her brief is copied in another.

Joined: 02/04/2009

MGoPoints: 18175