The California Court of Appeal recently warned that pasting unattributed legal content in an appellate brief is “a serious breach of ethics,” and “obviously unacceptable” and “sanctionable.”
The pro per appellant in Kelly v. Tow (Jul. 17, 2025, No. G064417) 2025 WL 1982214 (nonpub. opn.) challenged an sanction against him for filing an improper discovery motion. Nothing remarkable. But digging into the record, the appellate court noted that, in the respondent’s motion for sanctions in the trial court, the “Legal Standard” section of the motion quoted liberally from a 2017 article written by Janet Gusdorff (archive link here.) The court took this accusation seriously. “We take judicial notice of the existence of the article, which confirms Kelly's assertion of plagiarism,” because the trial court brief only made “a handful of insubstantial punctuation or word changes” and otherwise repurposed portions of the article without attribution.
Ultimately, the respondent apologized and so the court issued no sanction. But the court admonished counsel against such practice:
“To say the least, the unattributed use of another attorney's material is of concern to this court. It is a serious breach of ethics and a violation of rule 8.4 of the Rules of Professional Conduct, which provides it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation.” (Rules Prof. Conduct, rule 8.4(c), asterisk omitted; see also Lohan v. Perez (E.D.N.Y. 2013) 924 F.Supp.2d 447, 460 [“With respect to defendant's allegations that the majority of the Opposition was plagiarized, plaintiff and her counsel do not deny these assertions. Indeed, defendant's submissions to the Court evidence that almost the entire text of the Opposition is taken from unidentified, unattributed sources. [Citation.] Obviously, this type of conduct is unacceptable and, in the Court's view, is sanctionable pursuant to its inherent powers”].) Because counsel readily took responsibility for the unattributed use of Ms. Gusdorff's language and apologized for what he described as an inadvertent error, we elect not to impose sanctions. We strongly caution counsel, however, to ensure no further acts of plagiarism infect his briefing in this or any other court.”
Do not use unattributed work product in your briefs.
But in my view, the court’s admonition was excessive. When attorneys sign their names at the bottom of their brief, it is not the same thing as signing their names at the end of a published article. Signing your name on a brief is not about taking credit, but responsibility. An attorney who fails to attribute an argument is foolish because attribution is badge of credibility. But a failure to attribute is not a failure of ethics because the attorney has to take responsibility for the merit—or lack of merit—of the arguments in the brief, regardless of their attribution. There was no “plagiarism” going on here.
A few years ago, I pasted a multi-page argument from an unpublished—and thus uncitable—appellate opinion on an issue directly on point to my appeal. It was for a client on a tight budget, the issue was collateral to the merits, and the discussion was directly on point. I disclosed this, informally, to opposing counsel, who then accused me in his brief of unethical plagiarism. The court, fortunately, was unmoved by the accusation. I stressed that I would have been all too happy to cite to the source of the material, but rule 8.1115 forbade me from doing so. And besides, the work we litigators do is grubby enough without adding into the bargain claims of copyright over the arrangement of words and symbols in our briefs.
