Did Winston & Strawn cross an ethics line in a copycat court filing?

Imitation may be the sincerest form of flattery, but that’s not how attorneys at a small intellectual property firm saw it when a team from 850-lawyer Winston & Strawn allegedly copied one of their court filings “nearly verbatim.”

Boston-based, six-lawyer Hsuanyeh Law Group last month sued Winston, and four of its lawyers for copyright infringement — though making the claim stick could be a challenge based on factors that include what constitutes publication of a legal motion.

Technical copyright issues aside, the suit in my mind raises a broader question: Is it ethically permissible for lawyers to copy each other’s work? Not just a phrase or sentence, but cutting and pasting entire pages of text without attribution?

Such plagiarism would be career-ending in academia or journalism. But in the legal profession, it falls into a gray area.

“Plagiarism—what Judge Richard Posner defined as ‘unacknowledged copying’—is strictly forbidden in many fields,” Stanford Law professor Nora Freeman Engstrom, an expert in legal ethics, told me. “But in law, copying is complicated.”

That’s because penning a legal brief isn’t like other writing, where original thinking and artful prose are prized. As Engstrom noted, “In litigation, efficiency and judicial economy are of greater importance,” she said via email, adding that it would be "wasteful" to write every court document from scratch.

Still, the fight between Winston, which declined to comment, and Hsuanyeh, which did not respond to requests for comment, makes me wonder how far copying can go before it crosses a line — assuming a line even exists.

The case started out ordinarily enough. According to court papers, two Taiwan-based companies — Phison Electronics, represented by Hsuanyeh, and Silicon Motion, represented by Winston — were both hit with patent infringement lawsuits on June 2, 2023, by Unification Technologies, or UTL in the Eastern District of Texas.

The cases were consolidated (and have since settled), but the two companies did not enter into a joint defense agreement.

Phison declined comment, as did lawyers for UTL. Silicon Motion, or SMI, did not respond to a request for comment.

The Phison team from Hsuanyeh was first out of the gate to file a motion to dismiss UTL's claim of willful infringement on Aug 23.

“Though UTL’s accusation is redundant and immaterial, it does impugn Phison’s business reputation, and is therefore scandalous,” Hsuanyeh wrote in the 10-page filing.

The next day, Winston lawyers submitted their own 10-page motion.

“Though UTL’s accusation is redundant and immaterial, it does impugn SMI’s business reputation, and is therefore scandalous,” they wrote.

Hsuanyeh in its filing continued, “Rather than even suggesting questionable behavior, these descriptions are a nod to Phison’s dedication over the last twenty-plus years to providing valuable and reliable products and services to its customers.”

Likewise, Winston wrote, “Rather than even suggesting questionable behavior, these descriptions are a nod to SMI’s dedication over the last twenty-plus years to providing valuable and reliable products and services to its customers.”

You get the idea.

To be sure, the entire motion is not word-for-word identical. But it’s pretty darn similar.

Hsuanyeh promptly copyrighted its motion. In an email to Winston (included as an exhibit in the copyright lawsuit) Hsuanyeh wrote that it never gave Winston permission to copy the brief, and that replicating it "does not constitute fair use.”

Winston responded with a sorry-not-sorry letter, writing that “no case has ever held that a law firm's copying of a co-defendant's motion constitutes infringement.”

I’ll wait for the court – the case is pending before US District Judge Denise Cote in Manhattan – to sort out the IP issues, including whether filing a motion counts as publication in determining copyright damages.

My question for legal ethics experts, though, is whether Winston’s conduct might also violate any ethical norms.

The journalist in me screams “Heck yeah.” But legal writing isn’t journalism.

In law, it’s “very common for lawyers to use work written by others and pretend that it's their own,” Lisa Lerman, professor of law emerita at The Catholic University of America and co-author of the textbook “Ethical Problems in the Practice of Law,” told me.

If it saves the client money, that’s not necessarily bad.

The danger is that wholesale copying can “mislead courts, clients, and other readers,” she said, potentially violating the American Bar Association’s Model Rule 8.4(a) prohibiting dishonesty, fraud, deceit or misrepresentation.

Indeed, there are a handful of instances where courts have disciplined lawyers for copying other lawyers’ briefs, although there were often other factors in play.

For example, a lawyer in Washington, DC, was disbarred in 2003, for misdeeds that included filing a brief that was “virtually identical” to one filed by his client's co-defendant and overbilling for the work – a clear no-no.

A few bar associations, however, have clarified that using another lawyer’s work without attribution is not automatically deceitful.

“The purpose of a litigation filing is to persuade the court, not to convey an original idea,” the New York City Bar held in a 2018 opinion.

If one lawyer cribs from another, the opinion reasons, it doesn’t harm the original author, who wrote the brief to serve the lawyer’s own client and was entitled to be compensated for the work.

That compensation, the bar held, “is not diminished if some other lawyer later copies from the brief.”

Maybe. But if I was Phison and had paid full price to Hsuanyeh for the motion to dismiss, I’d be peeved to see that SMI got it one day later from Winston for (presumably) far fewer billable hours.

Fordham School of Law ethics professor Bruce Green said that even if Hsuanyeh doesn’t prevail in its copyright claim, there could be a silver lining.

“If you were a new client deciding which firm to hire, which one would you choose?” he said. After all, Hsuanyeh can now boast that “the proof in the quality of our work is ‘We were cribbed.“