Plagiarism and Punishment of Judges for stealing work of others
17.01.2020
Around the world, it is recognized that plagiarism is wrong and those who commit plagiarism should be held accountable. Plagiarism is contrary to morality and integrity, which are integral to the value of one's work, particularly in the field of law. Those who commit plagiarism face a wide variety of outcomes, however, and more should be done to ensure that such acts are considered when assessing the integrity of candidates for judicial positions and those who represent others in court. This article looks at consequences for plagiarism by judges and other legal professionals around the world and considers what principles should be used when holding them accountable.
Kaley Hanenkrat
Fellow at DEJURE Foundation (June - July 2019)
Juris Doctor Candidate, Master of Arts Candidate, University of Michigan
Reviewer:
Junior lawyer at DEJURE Foundation
How Should We Respond to Plagiarism?
When determining how to handle plagiarism by judges and attorneys, we must recognize the nuances of plagiarism itself. Though both are guilty of plagiarism, there is a distinct and important difference between a person copying 300 pages of another's work without attribution or apology and a person who naively failed to properly paraphrase a single sentence within a 300-page piece. The latter suggests a brief lapse in attention to detail and is a victimless offense, whereas the former demonstrates an egregious action that could result in actual harm to others, particularly if it happens in briefs or judicial decisions. Inevitably, most acts fall somewhere on a spectrum of harmfulness and egregiousness. For instance, President Zelenksyy plagiarizing former-President Poroshenko during his first trip abroad is not necessarily harmful, but is almost funny in its shamelessness. When determining the consequences for those working in the field of law, these differences dictate consideration of both intent in the act of plagiarizing and the harm caused by the act.

In his 2007 book, The Little Book of Plagiarism, American Jurist Richard Posner wrote that expectation is a fundamental component of plagiarism and he highlighted how expectations vary regionally and across professions. Both to the consumer of the plagiarized content and the original author have expectations to consider. Though there is an expectation of originality and giving credit to outside sources in most cases of writing, expectations in some professions rely more on the independent, active, and contemporaneous application of reasoning. For those who work in litigation, such as judges and lawyers, the latter is true for practice. "Practice," however, takes many forms, and can include such disparate activities as applying for a job to deciding the fate of a defendant in a murder trial. So then how should we respond to judges and lawyers who commit plagiarism?
Plagiarized Representation
As for lawyers, their plagiarism is addressed more harshly than it is for that of judges, though the egregiousness of the act as well as surrounding circumstances are often mitigating factors for punishment.

In the United States, lawyers are bound to the ethics rules in the American Bar Association Model Rules of Professional Conduct (MRPC) and their state bar equivalents. Both courts and bar associations interpret plagiarism to fall within MRPC Rule 8.4, which states, "It is professional misconduct for a lawyer to: …engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Essentially, plagiarism is not specifically banned, but rather falls within ethical rules regarding dishonesty and deceit. These violations effectively require some level of intent. Identifying this element helps to better understand how plagiarism is handled throughout the legal profession.

Peter Joy and Kevin McMunigal discuss a variety of such instances in their 2011 article, The Problems of Plagiarism as an Ethics Offense. Some examples border on comedic, such as Columbus Bar Association v. Farmer in which Derek Farmer, an attorney, persuaded the family of a convicted criminal defendant to hire Farmer in place of the original attorney on appeal. According to Farmer, the first attorney's brief, "wasn't worth the paper it was written on." Despite this, Farmer then filed a virtually identical brief once he was hired. The court suspended Farmer from practicing for two years, with a stay of one year pending ameliorative steps and probation involving a monitoring attorney who would oversee all of Farmer's work.

Lawyers who commit plagiarism in an academic setting also face penalties. In In re Lamberis, 443 N.E.2d 549 (Ill. 1982), an attorney pursued an LLM degree after being admitted to the Illinois Bar. He was found to have plagiarized his LLM thesis and was censured (formally reprimanded) by the Illinois Supreme Court. However, as shown by the holding of In re Zbiegien, 433 N.W2d 871, in which a law student was refused admission to his state bar over a single instance of academic plagiarism, you do not need to be a practicing attorney for plagiarism to negatively impact your legal career in the United States.
Judicial Plagiarism Outside of Court
Though academic plagiarism rarely causes harm to an innocent party, it is important for purposes of understanding the integrity those people whose integrity and morals are fundamental to their work. Ukraine has been working to implement processes to combat plagiarism in academia, though practices are inconsistent around the country. Kyiv-Mohyla Academy, for example, has robust policies related to plagiarism, and Kiev Polytechnic Institute and Kyiv National University of Trade and Economics likewise have developed procedures for addressing plagiarism in their institutions. These institutions and several others are exceptional in their practices, however. In 2015, Ukraine established the National Agency for Quality Assurance of Higher Education to ensure that Ukrainian institutions of higher education met the standards defined in Ukrainian law, including fighting plagiarism. There were some initial hurdles to ensuring that members of the Agency met the standards they themselves were expected to enforce and guide Ukraine's academic institutions towards meeting, however, as Serhiy Kvit wrote in a 2017 op-ed in the Kyiv Post. The National Agency for Quality Assurance of Higher Education, now headed by Kvit, may hold some promise to ensuring Ukraine's future judges and attorneys do not plagiarize in their studies.

What about those seeking to become judges or get a promotion who have committed plagiarism in the past? In Ukraine, plagiarism of the judicial candidate or judge undergoing qualification evaluation repeadelly was a reason for adoption of the negative opinion on the integrity by the Public Integrity Council (PIC). The PIC assesses candidates for judicial positions, excluding the Constitutional Court and the High Anti-Corruption Court, and provides a detailed report on the judge's integrity for the High Qualification Commission of Judges (HQCJ).

In its report on the candidate for the position of the Supreme Court judge Mikhail Huzely, the PIC identified specific phrases Huzely plagiarized in an article he wrote for Visnyk of the Lviv University's Law Series. Ultimately, the article was 85-90% borrowed from another article written by a scholar in Chernivtsi. Sergey Podkopayev, on the other hand, is believed to have written a substantial portion of the dissertation of Artem Pshonka, the son of his close friend and former Prosecutor General under Yankukovych, Viktor Pshonka. An analysis of this work shows signs not only of substantial plagiarism of another PhD dissertation, but, upon analysis of meta data, that it was written on Podkopayev's computer, casting immense doubt on Podkopayev's integrity. Another candidate, Alexander Fedotovich Sinikov, was found to have committed plagiarism in his own PhD dissertation at Zaporizhya National University. The PIC report notes that Sinikov was denied his diploma as a result, which was confirmed by the Ministry of Education and Science of Ukraine and Sinikov's professor, A. O. Selivanova. The three aforementioned candidates were not selected to serve on the Supreme Court. Huzely is currently working as an academic, Podkopayev currently works in a prosecutor's office, while Sinikov is a former judge.

Developing governmental organizations to establish ethical practices and fight plagiarism to academia is not entirely new, of course. In 2005, the Croatian Parliament founded the Committee on Ethics in Science and Higher Education (CESHE) whose work, in part, targets acts of plagiarism. The Committee has identified politicians, academics, and at least one very powerful judge who have plagiarized academic works, but they have faced pushback in the process. In 2017, the CESHE alleged that the President of the Constitutional Court of the Republic of Croatia, Miroslav Šeparović, committed plagiarism in his 2013 doctoral thesis. A few months later, the Constitutional Court ruled against the CESHE in a suit brought by the University of Zagreb, the decision which significantly restricted the Committee's authority by determining its rulings were secondary to the findings of lower-level bodies, such as ethics committees at universities. In late 2017, the CESHE stated that they had determined Šeparović had committed plagiarism. The judge then filed criminal complaints against the members of the panel in early 2018. Should Šeparović win the case, members of the panel who determined that he plagiarized could end up in jail. As of mid-2019, Justice Šeparović remains in his role on the Constitutional Court.

In the United States, judges rarely face serious repercussions for plagiarism outside of practice, but there are some exceptions. In June 2019, Kristina Reeves, an appellate litigator, withdrew from consideration for a position on the Arizona Court of Appeals. Her decision to do so followed the revelation that she plagiarized U.S. Supreme Court Justices Neil Gorsuch and Samuel Alito in her application, but subsequent to her attempt to "correct" her error when confronted by the reviewing committee. It is not clear that she was required to withdraw, but local experts advised that such an act of plagiarism would likely keep her from advancing, as lesser problems have held back other qualified candidates. The plagiarism in this case stemmed from approximately 400 words of 1,000 words within the application that were taken directly from Justice Gorsuch and Justice Alito without attribution.

Interestingly, Justice Gorsuch himself, the aforementioned victim of plagiarization, faced accusations of plagiarism during his Supreme Court confirmation hearing in 2017. The accusations related to sections of his book, The Future of Assisted Suicide and Euthanasia, and his Oxford D.Phil thesis, both of which borrowed heavily from a 1984 Indiana Law Journal article by Abigail Lawlis Kuzma. The author, Kuzma, defended Gorsuch, arguing that Gorsuch merely used the same factual statements and sources while others argued that his secondary source plagiarism did not rise to the level of true plagiarism. Though it appears that Justice Gorsuch's book and thesis from which it was developed both contained a form of plagiarism, this did not stop his eventual confirmation and he currently sits on the highest court in the United States.
Unoriginal Reasoning: Judges pushing the limits of borrowing in their rulings
Judicial plagiarism during litigation adds an extra wrinkle to addressing plagiarism, as those before the court rely on the soundness of the decision to provide justice. In 2011, Canadian Jurist Joel Groves copied substantial portions (321 of 368 paragraphs) of the plaintiff's closing statements in his decision. As Malinda Yuen notes, however, the plagiarism here should not be thought of the same way we normally think of plagiarism in academic writing, which is to say, whether the author's ethics are in question. Instead, the question is whether the judge actually adjudicated the case before the court. Mahmud Jamal, a lawyer representing the Canadian Bar Association which was intervening in the case, explained to the Vancouver Sun, "It implicates the nature of judicial function – what it means to be a judge and what the judge's duties are. It stands to impact in some manner all the cases that are before all the courts in the land." Jamal also noted the collaborative nature of judicial writing which incorporates past judgments, submissions to the court, and works of academics.

In 2013, the Supreme Court of Canada ruled in the final judgment on Judge Grove's case, writing that, "while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside. Only if the incorporation is such that a reasonable person would conclude that the judge did not put her mind to the issues and decide them independently and impartially as she was sworn to do, can the judgment be set aside." Effectively, the court determined that a decision will not be overturned for plagiarism unless a reasonable person would find that the judge did not actually apply his or her own reasoning to the case. Groves remains on the British Columbia Supreme Court.

In the United States, the Supreme Court has held that even where judges have adopted the findings of parties verbatim, "the findings are those of the court and may be reversed only if clearly erroneous." This is to say that it is permissible for judges to copy from documents submitted by the parties in a case so long as the findings are not "clearly erroneous." Barring this, a high standard in American courts, not only are judges not likely to be punished, but their decisions will most likely stand.

In a more egregious case, Jennifer Rimmer, an Australian Federal Court Magistrate, was found to have plagiarized 2,000 words from an entirely separate judgment. It was later found that this was not an isolated incident and that Rimmer had, in fact, done this in other cases. Initially, Rimmer blamed an illness and stress for her conduct and took sick leave before eventually resigning. It does not appear that she was publicly forced to resign, and the Chief Federal Magistrate stated that Rimmer's resignation was due to health issues.
Conclusion
In recognition of common practices within the legal profession, instances of plagiarism should be considered in light of expectations, context, and intent. Where the work plagiarized is demonstrated to not meet fundamental standards for independence, contemporaneous analysis, or otherwise demonstrates a failure of duty, reprimand and punishment are certainly warranted. There are mechanisms and principles on how to address this sort of violation, and it would contribute to the rule of law for these principles to be enforced more stringently.

However, the question of handling victimless plagiarism -- academic plagiarism outside of legal practice or even less egregious plagiarism in practice -- requires a more comprehensive, consistent application of rules and principles. By considering the intent behind the act, as well as the expectations, we may be able to create a system where legal practitioners are appropriately held to account for plagiarism through connecting it to their integrity. The PIC is a vital institution in Ukraine to ensure that plagiarism is not allowed to perpetuate in the legal system, but it is also important for academic institutions to teach the future lawyers and judges in their student bodies about plagiarism and to enforce rules where it is identified. For rule of law to thrive, judges and attorneys must show integrity in their work, and thus plagiarism cannot be ignored.
DJR
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