Clients expect professionals to work diligently on their behalf, but also want them to achieve results in a cost-effective manner. Experienced professionals are able to accomplish both ends by drawing from their knowledge base and past work product, rather than attempting to reinvent the wheel each time they undertake a new task. For instance, in the legal profession, it often behooves attorneys to begin legal research on novel issues within their firm to see if others have already addressed the issue and have analysis on hand. But attorneys may at times also find it useful to look to publicly-accessible briefs and filings from outside firms to see how others have addressed the topic. Relying on such third-party work-product, however, could be a recipe for professional liability.
Take, for instance, a recent copyright lawsuit filed against an attorney who allegedly copied a brief filed by a co-defendant in a patent lawsuit. The plaintiff, which was a co-defendant of the attorney’s client, alleged that the attorney copied substantial portions of the plaintiff’s draft brief without permission. The judge presiding over the matter ruled that the attorney had lifted portions of the brief without permission, but did not yet decide whether the attorney’s conduct would satisfy the criteria for fair use. Absent such an exception, the attorney could be subject to stiff penalties under federal copyright law.
Decisions such as this may be concerning to lawyers who view similar conduct as efficient as opposed to tortious. Nonetheless, attorneys and other professionals must proceed cautiously when “borrowing” from others without permission. Although ethics rules provide more leeway with regard to drawing from publicly-accessible filings, attorneys could expose themselves to threats of civil suits, and even adverse judgments, if they simply reuse other’s work as their own.