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Ethics/Professional Responsibility

Mar. 17, 2021

Federal prosecutors accuse Michael Avenatti’s lawyer of plagiarism

Avenatti’s lawyer was accused of ripping off Michael Flynn’s defense motion filed in 2019 but attorney H. Dean Steward called the government’s plagiarism claims “ridiculous and petty.”

Federal prosecutors in Los Angeles accused Michael J. Avenatti's lawyer of lifting word for word from a government misconduct motion filed in the District of Columbia in 2019 by a lawyer for former National Security Advisor Michael Flynn.

Assistant U.S. Attorney Brett A. Sagel, who is prosecuting Avenatti, said the defense motion accusing the government of withholding evidence "is particularly representative of defendant's bad faith."

"It is not grounded in the facts of this case; to the contrary it is copied nearly word for word from a filing in August 2019 by Sidney Powell in a completely unrelated prosecution against former National Security Advisor Michael Flynn in the District of Columbia," Sagel wrote in a response filed Monday.

H. Dean Steward, who is defending Avenatti, in a statement Tuesday called the prosecutor's claim "ridiculous and petty."

"Any review of the two motions shows they are markedly different. The government is simply trying to distract away from their own noncompliance with the court's order," Steward said.

Avenatti is accused of stealing millions of dollars from his clients and of failing to pay employment taxes for workers at a coffee company he owned.

In the March 8 filing, Steward accused the prosecutors of failing to comply with discovery orders. The government handed over 67 pages of additional materials that Steward said should have been disclosed long ago. Among the materials were emails by a government witness that were provided to the U.S. attorney last year. That witness said they never saw Avenatti do anything illegal or questionable, nor did Avenatti ask the witness to do anything illegal or unethical, according to Steward's motion. Other materials include exculpatory text messages the government possessed since 2018, as well as the criminal history of two of Avenatti's alleged victims.

Steward asked that Sagel be held in contempt.

Sagel, in his opposition papers, said the government complied with all its discovery obligations well in advance of deadlines, and continues to do so.

"Defendant offers no evidence to the contrary, choosing yet again to rely on unsupported (and inaccurate) speculations and accusations," Sagel wrote.

A side-by-side review of Powell's and Steward's contempt motions does show the same language being used, in particular in the introduction and the conclusion.

"The government has a crushing 95% or higher conviction rate. It is virtually impossible to defend successfully when the might and power of the federal government focuses on the destruction of an individual, and the government holds all the cards. The rule of Brady v. Maryland requiring the government to disclose evidence favorable to the defense is likely the single most important underpinning of due process for a criminal defendant -- yet is often observed only in the breach," both motions read. "While prosecutors routinely recite their full knowledge of and compliance with their Brady obligations, in truth they often scoff at them and continue to play games to win convictions at all costs. Meanwhile, the defense does not know what the defense does not know."

Both cite the prosecution of U.S. Sen. Ted Stevens, and how the government "has learned nothing" from that case, and then each states the government engaged in worse conduct to prosecute Flynn and Avenatti. Brady was adopted to remind the government of its obligations, "rather than leaving openings for any excuses or being hamstrung to consider criminal contempt charges as it was in Stevens by the absence of a preexisting order," both wrote.

The Flynn and Avenatti motions both concluded: "Sunlight is the best disinfectant, and no court can do justice until it knows the truth. To restore any measure of trust and credibility in our law enforcement institutions, the government must be held to the highest standards."

Both cite United States v. Harvey, 791 F. 3d 294, 300 (4th Cir. 1986) which said, "'Concerns for the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of federal government' demand it."

Ironically, Judge Emmet G. Sullivan of the District of Columbia accused Flynn's lawyers of borrowing, to some extent, from a brief filed in another case by different attorneys. Sullivan said Flynn's defense filings "lifted verbatim portions from a source without attribution."

Copying another attorney's brief could be regarded by a judge or the State Bar as misconduct or a breach of ethics, according to experts.

Erin Joyce, who defends lawyers in State Bar investigations and disciplinary actions, said "lifting the briefing of another attorney without attribution can be considered deceptive conduct under Rule of Professional Conduct 8.4(c) which provides: 'It is unprofessional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation.'"

This is an important lesson for practitioners who might think about billing a new client for working up a similar case with identical issues as a previous client -- even if they are using their own work, Joyce said.

"I can't rebill for my work if I use the same old stuff. The original stuff took me 3 hours to write, but it didn't take me the same amount of time to cut and paste into a new brief, even if it's applicable to the new case," Joyce said.

It's typical for attorneys to borrow language from other court filings, but the Avenatti situation "is just a bit past it," Joyce said.

"I think he should have given attribution. It would have been better," Joyce said.

Kendra Basner, partner at O'Rielly & Roche LLP in San Francisco, said "Every instance of alleged plagiarism must be evaluated separately."

"Copying another lawyer's work product without permission and presenting it as one's own work product without providing proper attribution could certainly implicate the violation of ethical duties, such as truthfulness and candor," said Basner, who specializes in legal malpractice law.

Lifting someone else's work could also "violate a lawyer's duty of competence if it's not tailored to the facts and circumstances of the client's case," Basner said.

However, "even if the lawyer's plagiarism breached a duty to the client, it would only rise to the level of professional negligence if it caused damage to the client," Basner said.

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Gina Kim

Daily Journal Staff Writer
gina_kim@dailyjournal.com

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