Lawyer cribs from Wikipedia

OOOF! In US v. Sypher, from the Federal District Court, W. Dist., KY., Judge Charles R. Simpson, III, chides the lawyer for the defendant, in footnote 4, at page 6:

The court notes here that defense counsel appears to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. (snip) The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. The court also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). (sic, SCR 3.130.8.4(c))(snip) Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

It seems particularly ironic, not to say poignant, that the article from Wikipedia that was plagiarized was about ineffective assistance of counsel. Now, I suppose, they will have to crib one about plagiarism, where, conveniently, the current edit states that legally, the concept of plagiarism really doesn't exist.

Though plagiarism in some contexts is considered theft or stealing, from the point of view of the law, it is a non-existing concept. "Plagiarism" is not mentioned in any current statute, either criminal or civil.

(Wikipedia article on plagiarism, visited 4/8/11) Hmmm. Tell it to the judge. The attorney for the defendant in this case does not appear to be a law student in some under-supervised clinic, but a practitioner who took actual money from the defendant to represent her in her motion for a new trial on the claim that she had ineffective assistance of counsel at her trial for extortion. Now, considering what the judge wrote in his footnote, as well as a number of over-looked deadlines to file motions for extensions, one suspects that Ms. Sypher may be bringing another action for malpractice and the bar may be looking hard at this lawyer's actions in this case.


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A Coup for Lexis

Lexis has announced that as of May 1, it will be the "exclusive third party online distributor of ALM's broad collection of industry-leading legal content worldwide." What this actually means is that Westlaw will no longer offer access to The National Law Journal, The American Lawyer, New York Law Journal, New Jersey Law Journal, and a host of other publications. All of these titles will be available on Lexis, where they will help to level the playing field between the big two legal database vendors. As a teacher of legal research, this news is heartening. Students sometimes ask why they have to learn Lexis (students at my school tend to favor Westlaw, perhaps because we use TWEN), and access to the ALM publications will be a strong incentive.


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Online Research Exposes Legal Researchers & Clients to Ethical Issues!

Our colleague, Anne Klinefelter, has written a stunner of a new article at 16 Virginia Journal of Law & Technology 1 (16 VJoLT 1), Spring, 2011, WHEN TO RESEARCH IS TO REVEAL: THE GROWING THREAT TO ATTORNEY AND CLIENT CONFIDENTIALITY FROM ONLINE TRACKING. The title explains a lot about her ideas, but here is a bit more detail. Her thesis is that online legal research providers often track, either for their own use, for corporate parents, or for advertisers or other third parties, the actions of the researcher. This includes the really expensive commercial services, like Lexis or Westlaw, as well as the lower-rent services that I immediately assumed we were talking about! ISPs (the internet service providers) also track use, as most librarians know. Both types of trackers (as well as vendors of all types) use or resell the info, but the tracking info can also be "hacked" by unaffiliated third parties as well.

This has been recently highlighted by a subpoena issued for the music service, Pandora, to share information about its app for the Android and Apple mobile platforms. The concern is that both iOS and Android have been reported to share user data with third parties, and it appears that federal prosecutors are considering bringing very rare criminal charges for violation of online privacy laws, or civil charges under the Computer Fraud and Abuse Act. The creators of the apps could also face charges from the FTC for unfair and deceptive practices, since the users of Pandora on their mobile devices, for instance, had no idea that they were also sharing all their information with third parties. The apps appear to be free, because they are supported by ads in the "Apple store," and users download them in the belief that the ads have "paid for" the application, without ever considering that part of the payment or "monetization" might be tracking their internet use. Well, it turns out that free legal research sites, as well as some rather expensive research sites also "monetize" our research behavior in similar fashion!

Using Google or other ISP sites that begin with https:// means you are using encrypted technology and that stops a certain amount of the "packet sniffing." You can search Lexis-Nexis, Westlaw and GoogleSearch (and GoogleScholar) over https ISPs. But other research services often do not allow encrypted searching. Klinefelter mentions Casemaker, a popular, lowercost search service that is offered as a free option with bar membership in many states.

Klinefelter briefly glances over the issues raised by government tracking of internet users, mentioning a wide variety of issues, but specifically stating that this article is focused on the problem of commercial tracking. She also glances at the problem of mal-ware designed to track users' movements, but again, the focus is elsewhere. In both cases, Klinefelter provides a rich trove of citations on both topics for those who wish to explore the side-bars.

She sees two threats specifically for legal practitioners in this development:
1) Breach of Attorney-Client Privilege;
2) Damage to the Work Product Protection rule.

Ethical rules governing requirements of confidentiality and competency drive developments for attorneys. Read the article.

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Dick Does Duke

Duke Law School does not go out of its way to publicize the fact that the only United States President ever to resign, Richard M. Nixon, is an alumnus of the Class of 1937. Last week, however, a musical about Nixon, Tricky Dick, was put on by Duke Law School professors, staff, and students. The play was also written by Duke Law School students. The New York Times reports that the musical was first performed last year, but without "acknowledgement" from the school. "This year, the play received a $5,000 donation from the Allen & Overy law firm." Proceeds from the production went to the Duke Public Interest Law Foundation, according to the WSJ blog. In the play, "Nixon is imagined as a young, ethically challenged Duke law student running for student body president." Duke Law School's website features photos of the production and of Duke's portrait of Nixon, long kept out of sight, now on display in the law library, "where students posed with it and flashed Nixon's trademark V sign. The law school is even considering creating a permanent display about Nixon to accompany the portrait ..." To someone who lived through Watergate, Nixon's rehabilitation at Duke is a strange turn of events. Contemporary law students, however, don't remember the damage done by Nixon and his cronies. According to the Times,

Duke students these days seem less embarrassed by the disgraced former president than amused by him. While historians and Nixon contemporaries may debate the lingering toll of the Watergate scandal, current Duke students seem simply proud to have had an alumnus elected president--even one who was forced to resign.

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In Praise of Robert Morgenthau

Robert Morgenthau, the legendary former District Attorney for New York County, is the subject of a compelling profile written by Rand Richards Cooper, a fellow Amherst alumnus, in the Winter 2011 issue of the Amherst College alumni magazine. Morgenthau led the District Attorney's office for thirty-four years, retiring in 2009 at the age of ninety. During his tenure, it became one of the most highly regarded prosecutorial offices in the United States, a famous training ground for attorneys, some of whom went on to have distinguished careers in law, politics, and on the bench--Supreme Court Justice Sonia Sotomayor; New York Governor Andrew Cuomo; John F. Kennedy, Jr.; Robert F. Kennedy, Jr.; Eliot Spitzer, former New York Governor; Linda Fairstein, former head of the Sex Crimes Unit and author of crime novels. According to the profile, Morgenthau became "a kind of one-man networking maven."

The profile summarizes Morgenthau's life as follows:

Morgenthau is a figure of tantalizing paradoxes: a reedy patrician who became a gravelly voiced, profane prosecutor; the scion of a wealthy family and graduate of Deerfield, Amherst and Yale who spent his career confronting every variety of urban depravity; a Jew, proud of his heritage, whose loss to Nelson Rockefeller in the 1962 governor’s race was once attributed to his not knowing what a knish was; a self-described “shy” person whose work placed him at the center of New York City’s raucous politics, linked him to some of the most notorious names of 20th-century America—and made him the model for the DA in the long-running TV drama Law & Order.

Morgenthau prosecuted a number of extremely high-profile cases--the murder of John Lennon; the "Subway Vigilante" case; the "Preppie Murder" case; the Central Park jogger case; the BCCI money-laundering case--and was known for his pursuit of white-collar criminals. During his time as District Attorney, Morgenthau also pioneered "major upgrades to prosecuting cases ... from computerization to videotaped confessions and DNA analysis."

He was born to a life of wealth and privilege. His parents were friends of the Roosevelt family, and "as a teenager, [Morgenthau] roasted the first hot dog ever served to the British royal family, during a visit of King George VI to Hyde Park." I wonder what the King had to say about that gastronomic treat! Morgenthau's decision to enter public service was made when the destroyer on which he served as an officer during World War II was sunk by German bombers in April 1944.

In the hours he spent adrift before being rescued, he found himself thinking intensely about what to do with his life if he survived. "I guess I started making promises ... There I was, floating around the Mediterranean--and it sounds kind of corny now, but I decided to devote my life to public service."

The illustration is from a laundatory Village Voice article written at the time of Morgenthau's retirement.

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The Sorry State of Academic Publishing

The article, "Libraries, Publishers, and a Plea for Shotgun Weddings," by Bryn Geffert, the librarian at Amherst College, really struck a chord with me. Geffert decries the sorry state of academic publishing which is exemplified by a book he was recently asked to review.

At first glance, the work appeared promising. The publisher's Web site pledges research based on "recently opened archives," "surprising" revelations, and a "comprehensive overview" of important and neglected topics.

The list of contributors includes important figures in the field. The editor, a reputable scholar, teaches at a good university.

The publisher is a well-known commercial press.

And the book is an absolute mess.

Sentences do not parse. Punctuation comes and goes as it pleases. Basic grammatical standards retreat in the face of indifference. Narrative coherence gives way to meandering, self-absorbed stream of consciousness. The essays largely eschew arguments and theses. New information and archival research: not so much. Inanities abound. And those essays that do evidence some internal coherence bear little relation to their neighbors.

Perhaps most troubling is the almost utter lack of correlation between the book's content and the content promised by promotional blurbs. "Key themes" noted in the introduction appear nowhere else. We can only assume that topics presaged in advertising copy took a wrong turn in Albuquerque.

Geffert concludes that a number of publishers are "charging outrageous prices for embarrassingly bad books, knowing that enough individuals and institutions will snap them up." I am responsible for most of the acquisitions decisions for my library and personally look at every book (except for standing orders) we receive before it is processed. Given the volume of what comes in and the scope of my other responsibilities, I can't spend more than a few minutes on each book. Obviously, this isn't enough time for me to make a thorough evaluation of every book, but it is enough time for me to form an overall impression of which publishers produce books of quality and which produce schlock. As a result, I have a list of publishers from which I no longer purchase because of the "inverse correlation between the price and quality of [their] books," as Geffert puts it. He concedes that there are "good university presses [that are] bucking" the trend to publish books "with meager or no editorial support." How do they survive?

[B]y canceling series, releasing fewer titles, slashing runs, and declining to consider manuscripts that lack broad appeal. The result: Scholars increasingly throw their lot in with the disreputables; libraries purchase garbage; promising manuscripts go unpublished; and good manuscripts go to press half-baked. University presses committed to publishing worthy books—the presses we admire and on which we rely—can no longer give us what we need. And those that try find that libraries—each year spending ever-greater portions of their budgets on commercially produced serials—can't afford to buy what we beg the presses to produce.

Geffert believes that the current situation will not be remedied until libraries "step into the breach." He points to the University of Michigan which merged its press and its library two years ago; it pledged to "publish all future books online, free of charge." He says there are similar experiments at Utah State, Penn State, and Stanford. Geffert concedes that library resources are so stretched that

We cannot provide those we serve with what they need. Perhaps it is time to produce ourselves what we can no longer afford to purchase; to use personnel and financial resources from our libraries ... to save and revive academic publishing of high quality.

The Oberlin Group, an informal confederation of 80 selective liberal-arts college libraries, is considering creating a "liberal-arts press" which would be a "serious, scholarly press committed to rigorous peer review, superb editing, and the free dissemination of publications." This would require libraries to "reconfigure" library positions to support such an effort. Time will tell if libraries will actually be willing to free up human and financial resources. For a good overview of the issues facing academic presses, see Sustaining Scholarly Publishing: New Business Models for University Presses, a recent report from the Association of American University Presses. Geffert's article is available online to those who subscribe to the Chronicle of Higher Education.

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