It is bad enough when a judge refuses to let out your client from a plea deal but it is worse when he then suggests that his lawyer is a plagiarist to boot. That however is what former National Security Adviser Michael Flynn and his counsel, Sidney Powell, faced in the 92 page order of U.S. District Court Judge Emmet Sullivan. Flynn has been trying to get out of his plea bargain in light of new information of improper conduct by the FBI in its Russia investigation as well as exculpatory information regarding his guilt. Many of us have criticized the prosecution of Flynn who pleaded guilty to a single false statement in interviews with the FBI. In addition, Flynn may not want to be sentenced by Sullivan whose last major hearing included false allegations against Flynn and dramatic condemnations. One can certainly understand Sullivan’s refusal to let Flynn get out of a plea that he willingly entered. However, the opinion contained an attack on his counsel that seemed gratuitous and unsupported.
Sidney Powell is a former prosecutor with extensive criminal justice experience. She was the subject of a curious part of the long opinion.
Early on, Judge Sullivan dedicates a separate section to suggest that counsel has committed an unethical act:
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.CompareDef.’s Br., ECF No. 109 at 11-12,15-16, 15 n.21, with Brief of the New York Council of DefenseLawyers et al. as Amici Curiae Supporting Petitioner,Brown v.United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906at *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 v. United States.” Def.’s Br., ECF No. 109 at 16 n.22.
The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule8.4(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);accordLCrR 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).
Wait. Powell cited and had a hyperlink to the source of that material, but it warrants a section accusing her of plagiarism and ethical violations?
It is particularly ironic because I have often faced cut and pastes from prosecutors in briefs. I even had a case where a warrant for electronic surveillance contained a cut and paste that referred to the facts of an entirely different case (it was still signed by the court). I just do not understand why an insufficient citation warranted such a public lashing and suggestion of unethical conduct.
Powell says that “the plagiarism accusation makes no sense.” She maintains that she used her own prior briefings and a brief written by a friend who was in fact cited.
The criticism in the opinion will likely deepen the unease of Flynn in having the sentencing under Judge Sullivan. However, the court said that it will proceed with precisely such a hearing on January 28, 2020.