Anyone who litigates exempt misclassification cases is familiar with the issue of concurrent duties. Plaintiff's lawyers like to argue a head-and-hands analysis, which essentially urges the court to pay attention to what the hands are doing. A manager who is wiping up spilled soda while simultaneously observing that his employees are not stripping off their mandatory work uniforms, beating customers with sticks and leaving work early isn't really doing management tasks while his hands grip the mop, notwithstanding his eyes darting across the store every few seconds. Employer's lawyers focus on concurrent duties, suggesting that a manager who wears many "hats" is engaged in management activities whenever one of those "hats" is a manager's hat.
One of the best published opinions regarding the executive exemption was Murphy v. Kenneth Cole Productions, Inc. (2005) 134 Cal.App.4th 728. In it, the First District Court of Appeal wrote a seven page analysis, at pages 7-14 of the slip opinion, under the sections entitled Overtime Compensation and Exempt Employees, Governing Regulations – Executive Exemption, Authority to Hire or Fire, Exercises Discretion and Independent Judgment, and Primarily Engaged in Exempt Duties. The analysis is great, and it includes one of our favorite lines ever written in any such analysis:
"Murphy was a nominal coxswain who performed most of the time as an oarsman alongside the rest of the crew."
Once the Supreme Court granted review of Murphy, under the California Rules of Court, it became improper to cite the Court of Appeal's opinion. The Supreme Court did not address the exempt/non-exempt issue on review, so it all that wonderful language just disappeared into the dustbin. Or did it?
We were arguing one of the appeals in our class actions a few months back when we saw another lawyer in another case stammer a bit when arguing a point on which his brief had relied heavily upon a case that had since been ordered reviewed. "Argue the rationale," the Justice told him. "You need not cite the case." So certainly one can argue the points raised in the Murphy opinion. But should you mention where you got that analysis?
There was an interesting discussion a few weeks ago on the Volokh Conspiracy regarding an attorney named Peter Cannon, who was sanctioned by a court in Iowa for plagiarizing in his briefs from a law review article that he did not mention. The case is In re Burghoff (S.D. Iowa Aug. 21). The U.S. Bankruptcy Court had this to say about Mr. Cannon using another person's analysis without attribution:
It is a violation of the Iowa Rules of Professional Conduct for an attorney to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Iowa Rules of Prof'l Conduct R. 32:8.4. Plagiarism, which is "[t]he deliberate and knowing presentation of another person's original ideas or creative expressions as one's own," Black's Law Dictionary (8th ed. 2004), is a form of misrepresentation. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300 (2002); accord In re Lamberis, 443 N.E.2d 549 (Ill. 1982) (finding plagiarism constitutes deceit under Illinois Code of Professional Responsibility); cf. United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995) (disapproving of a brief that "directly track[ed]" a circuit court opinion which the attorney did not cite)....
Mr. Cannon's acts of plagiarism burden the Court, undercut his client's cause, and generate criticism of the legal profession. Moreover, parroting a scholarly article in this way is not an effective type of advocacy. See Frith, 325 N.E. 2d at 189. More fundamentally, Mr. Cannon's disregard for the true authors' property rights in their ideas reveals a lack of integrity that reflects poorly on the legal profession. Lane, 642 N.W.2d at 300; Lamberis, 443 N.E.2d at 551. The egregiousness of Mr. Cannon's conduct requires an appropriate sanction....
Although one cannot "cite" was Murphy v. Kenneth Cole Productions, Inc. (2005) 134 Cal.App.4th 728, one certainly is free to borrow heavily from its analysis, and if one does so, wouldn't the obligation to attribute require at least letting the court know that you were using the words of the First District Court of Appeal, albeit from an opinion which is no longer citeable, but which was not reversed? After all, you wouldn't want to suffer the fate of Peter Cannon. You aren't trying to deceive the court through a blatant act of plagiarism. You just want to argue you point as eloquently as the First District Court of Appeal put it in 2005. Right?
There is quite a bit of this unquestionably unethical "copying" going on, but it should be noted that in imposing sanctions the Court was influenced by the fact that the attorney not only copied the scholarly article word for word, but selectively edited out comments and citations which were adverse to his client's position. As a result, the brief did not even honestly represent the work that was plagiarized. The improper practice of deliberately failing to cite adverse authority is now so common that it seems to go unnoticed most of the time.
Posted by: Steve Kane | November 20, 2007 at 02:51 PM