Based on the 92-page decision by District of Columbia Judge Emmett G. Sullivan, the motion by General Michael Flynn’s new lawyer, Sidney Powell, was a dumpster fire. Her Brady arguments were bizarre to the point of substantively laughable. No, there is no right to pre-charge Brady disclosure of exculpatory material. No, inculpatory material readily available to the defense isn’t Brady material.
This is rookie stuff, and the only question raised is why Sullivan took 92-pages to say what would ordinarily have been said in a one-page decision, if not a docket entry, had this not been General Flynn. Then again, it’s been suggested by an ex-DoJ friend and former clerk that this was the judge letting a clerk run wild on his computer, though in a case of this profile, one would expect the judge to not let this decision out into the wild without deciding it was what he wanted the nation to see.
But the easy Brady rulings aside, there was a section of the decision that suggests that Judge Sullivan really, and I mean really, did not like Powell’s handling of the case.
A.Ethical Concerns with Mr. Flynn’s Brief
The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.’s Br., ECF No. 109 at 11-12,
15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v. United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906 at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown Case 1:17-cr-00232-EGS Document144 Filed12/16/19 Page 17 of 92 The Court first considers Mr. Flynn’s requests and the A.Ethical Concerns with Mr. Flynn’s Brief The Court notes that Mr. Flynn’s brief in support of his v. United States.” Def.’s Br., ECF No. 109 at 16 n.22.
The District of Columbia rules of Professional Conduct apply to proceedings in this Court. See LCrR 57.26. Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R. 8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.” United States v. Bowen, 194 F. App’x 393, 402 n.3 (6th Cir. 2006); accord LCrR 47(a). “The [C]ourt expects counsel to fully comply with this [C]ourt’s rules and submit work product befitting of pleadings [and briefs] in a federal court.” Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 77 n.2 (D.D.C. 2006).
In short, Powell glommed language from an amicus brief by the New York Council of Defense Lawyers, for which she provides a link in a footnote rather than blue book citation, and Judge Sullivan calls it an ethical issue of plagiarism. No matter how badly Judge Sullivan disliked Powell’s work, or perhaps Powell herself, or maybe ate a bad breakfast burrito, this is utter, unadulterated bullshit.
There are any number of wrongs that can be committed in the use of language from others, whether a court opinion or an adversary’s papers. The tactical use of ellipses is a common ploy, as is the misquoting, testing whether the judge (or his law clerk) will do the heavy lifting of checking to see whether you’ve been honest in your quotation. When that happens, it is, indeed, an ethical “concern,” as in a punch to the gut is tummy concern.
If you get caught (and for those of us who don’t throw foul balls, we hope you do), you deserve to have a judge rip you a new one. You were dishonest. You got nailed. Too bad for you.
But briefs? Lawyers plagiarize briefs all the time. If an argument has been well stated, then it would be nuts to restate it in different, but less effective, language. We know this. We do this. Not everyone, and certainly not all the time, but we reuse words written by others in one way or another regularly.
And if you’ve done a particularly good job of setting forth the law, or facts, and have persuaded the court to see things through your eyes, then the best thing that can happen is to have the judge plagiarize your work. There is nothing better than to see your paragraph appear in the judge’s ruling. The other side’s, not so much, but that’s plagiarizing too. And yet, lawyers are not only unoffended by such flagrant theft, but find it the highest compliment possible. Steal my words, Judge. Steal them, all of them, to your heart’s content. I’ll make more.
Ironically, had Powell not included a footnote with a hyperlink to the Council of Defense Lawyers’ brief, it still wouldn’t have been an ethical “concern.” But she did, and in all likelihood, had she not, Judge Sullivan wouldn’t have had any clue that she glommed language from it in the first place. It’s not as if his clerk would check every brief ever written on an issue for potential plagiarism. So Powell’s pointer to the brief from which her language came gave rise to the gripe that she stole the words without proper attribution. So it was improper attribution? Heavens.
While Powell’s Brady arguments were bad, which is being overly kind to Powell as they were absolutely wrong beyond question, whatever annoyance Judge Sullivan, or his bored law clerk, felt toward Powell should never have manifested in calling her “lifting arguments” from a brief, linked or not, an ethical concern. It was nothing of the sort. There’s nothing wrong with it. It’s commonplace and expected, and even the best lawyers will do it when the words have already been written that best argue the point being made.
Lawyers say there’s no reason to “reinvent the wheel,” and so we don’t. The job is to advocate for our client, and if that means using the words already written that do the job, then it’s our duty to plagiarize them and serve our client’s interest. Judge Sullivan can beat on Sidney Powell all he wants, but leave plagiarism, and ethical concerns, out of it. There is no concern here.