05 March 2015

Plagiarism and the legal profession

(2013) 'Admission as a lawyer: the fearful spectre of academic misconduct' by Mark Thomas in (2013) 13(1) QUT Law Review 73-99 comments
Notwithstanding a cultural critique of the concepts that underpin the values of academic integrity, both the university, as a community of scholarship, and the legal profession, as a vocation self-defined by integrity, retain traditional values. Despite the lack of direct relevance of plagiarism to legal practice, courts now demonstrate little tolerance for applicants for admission against whom findings of academic misconduct have been made. Yet this lack of tolerance is neither fatal nor absolute, with the most egregious forms of academic misconduct, coupled with less than complete candour, resulting in no more than a deferral of an application for admission for six months. 
Where allegations are of a less serious nature, law schools deal with allegations in a less formal or punitive fashion, regarding it as an educative function of the university, assisting students to understand the cultural practices of scholarship. For law students seeking admission to practice, applicants are under an obligation of complete candour in disclosing any matters that bear on their suitability, including any finding of academic misconduct. 
Individual legal academics, naturally adhering to standards of academic integrity, often have only a general understanding of the admissions process. Applying appropriate standards of academic integrity, legal academics can create difficulties for students seeking admission by not recognising a pastoral obligation to ensure that students have a clear understanding of the impact adverse findings will have on admission. Failure to fulfil this obligation deprives students of the opportunity to take prompt remedial action as well as presenting practical problems for the practitioner who moves their admission. 
Thomas states -
For students anticipating admission as a lawyer, the implications of academic misconduct, though less spectacular than Burt’s, nonetheless represent a substantial threat to their ambitions, with the Queensland Court of Appeal having signalled, in 2004, its discomfort with admitting applicants to practice where adverse findings of academic misconduct were before the Court. In a broader academic context, Bowers had, as early as 1963, reported that three out of four university students surveyed had engaged in some form of ‘questionable’ activities, and Bowers and McCabe (in 1993) subsequently found that the proportion of students admitting to cheating was ‘remarkably constant.’ There was, however, a ‘dramatic increase in [impermissible] student collaboration’ where individual work was required, with the 11 percent figure in 1963 rising to 49 percent in 1993. 
Perceptions of academic misconduct in the modern university suggest that it remains ‘rife.’ Law schools are clearly not immune from this problem: Queensland’s Chief Justice observed in 2008 that he was ‘especially surprised’ by the frequency of academic misconduct disclosed in applications for admission. The current literature records that, since the turn of the century, academic misconduct is (again?) assuming ‘epidemic proportions.’  It is driven by the ‘swirling currents of [the] information revolution,’  the explosion in electronically available resources,  and the increasing commodification of education, with extrinsic factors (such as money and status) rather than intrinsic goals (community involvement, competence, affiliation and autonomy) motivating students, as well as the reimagining of the relationship between text, authors and audiences. These factors, it is claimed, have created an environment where the appropriation of others’ work ‘is deployed by students as a tactic to achieve educational success.’ The cost of degrees has created a climate where ‘[s]tudents are faced with many temptations to plagiarise,’ responding to the pressures of studying while working and an increasing pressure to ‘succeed’ and provide a return on investment. In the commercialised environment of modern university study, plagiarism and other forms of misconduct have been re- conceived as ‘consumptive practices,’ rather than failures of traditional scholarly culture. In a credentialist educational paradigm, academic misconduct becomes more easily rationalised. For the law student, the ramifications of a finding of academic misconduct are potentially more serious than in any other discipline. 
Confounding further the traditional values underpinning the institutional virtues of proper academic conduct are critical cultural attitudes which characterise ‘originality and individual authorship as mythologies.’ Postmodernist writing challenges at a fundamental level the concepts of original authorship of text, with concepts of attribution inevitably becoming equally contested. Barthes, for example, describes text not as ‘a line of words releasing a single “theological” meaning (the “message” of the Author-God) but a multi-dimensional space in which a variety of writings, none of them original, blend and clash.’ Similarly, Bakhtin sees all language as infused with linguistic baggage: ‘... all our utterances ... [are] filled with others' words.’ Plagiarism is, in such a context, postmodern textual liberation, recognising the continuous intertextual interplay of ideas, and the words which concretise them, as against a contested personal authorship. 
The intersection of such critiques and the culture of the academy has thus seen an assault in some quarters on the implied political stance inherent in the concept of academic integrity. Plagiarism and other forms of academic misconduct are thus identified as ‘insurrectionary’ in university culture, with its ideological fascination with reason, autonomy, originality and objectivity. That culture is predicated on a ‘common ideological ground in the creative, original individual who, as an autonomous scholar, presents his/her work to the public in his/her own name.’ The author as ‘the manufacturer’ of texts is, it is argued, an artefact of the ‘economic/ideological system which arose in [Enlightenment] Europe.’ 
Such critique, combined with the general lack of referencing and validation practices which inform the internet publication of opinions, arguments and criticism, has created a sharp divide between the ‘public’ world of writing, and writing within the scholarly disciplines. Such a boundary, however, is not necessarily understood by modern students, whose primary mode of communication is technological, and whose primary connection to information is electronic.  Students thus often view copying from online sources as being ‘significantly less dishonest than similar offences using printed sources,’  since it comes from a platform where the interchange of ideas is not governed by principles of ownership, but by free interchange and recombinant or pastiche expression. 
Such critical analysis of language (and the underlying reference to the psycho- linguistic modes of generating language informing such approaches) presents a picture which is antithetical to the strict boundaries of authorship that underpin the paradigm of knowledge and scholarship on which proper academic conduct is predicated.  As products of the Enlightenment, the modern (and modernist) university retains, at the institutional level, conventional understandings of authorship, where words, ideas and arguments are discretely attributable to specific sources, requiring acknowledgement as an integral part of the value system underpinning scholarly culture. It is here, for the law student, that the spectre of academic misconduct crystallises. 
As the unit co-ordinator for Professional Responsibility at the Queensland University of Technology (QUT), the author teaches the subject in which the regulation and discipline of the legal profession, including a substantial component on the admission process. The author has therefore had occasion to deal with instances of academic misconduct – ironically, even in the unit which deals with professional ethics. As a barrister, the author is frequently consulted by students seeking admission who have suddenly realised that they have ‘suitability matters,’ including academic misconduct, which now assume fearful (and not infrequently tearful) proportions. The author has moved a substantial number of admissions before the Court of Appeal, including significant numbers of admissions where findings of academic misconduct have been disclosed. 
Where an application involves suitability matters, the tenor of the occasion shifts from the routine ceremonial to something of a prosecutorial/adversarial process, taking on at least metaphorical resonances with a plea in mitigation by defence counsel. Yet what might be thought of as conventional mitigating factors (such as stress, illness, workload etc) are clearly not available to limit the culpability of a student who has disclosed academic misconduct. Indeed, they are the antithesis of mitigation in the courts view, demonstrating a preparedness to act dishonestly in stressful situations to achieve specific ends. 
The Queensland Court of Appeal has clearly signalled that academic misconduct is a factor bearing on fitness for practice. It is not, however, automatically disentitling. Developing appropriate submissions is often hampered, though, by the way in which academics have framed the documentation of their findings – with unintended ramifications for the student’s admission. While adverse findings of egregious plagiarism attract the Court’s full attention, they will also have been made within a formal committee process, and be accompanied by detailed documentation. Conversely, for lesser transgressions, the very informality which university policies mandate, and the scholarly values which academics bring, quite properly, to managing minor misconduct can problematise the presentation of persuasive submissions. 
As Chanock observes, the experience of academic standards which students bring with them from secondary school are ‘startling’. Most are used to referencing practices substantially less rigorous than those which apply at university. Chanock’s research showed that a third of students surveyed had not been expected to attribute direct quotations, and two-thirds had not been expected to reference sources of the materials included in submitted work. Referencing by means of a bibliographical entry was reported as sufficient even for direct quotation by a quarter of those surveyed. 
Despite differing reports of the intended destinations of law students, it seems that somewhere around a half of undergraduate law students undertake their LLB with the intention of seeking admission as lawyers. Few enter law school already focussed on an academic career. Many arrive in tertiary education without a clear understanding of the unique view of academic propriety which is embedded deeply in university culture, and do not generally anticipate remaining within that culture once qualified. The intrinsic values of academic propriety are to their minds a relatively brief engagement with an alien world for largely pragmatic purposes. 
Moreover, law students frequently do not see the relevance of plagiarism to the practice of law, considering that neither the judicial system nor the practice of law seem to place similar strictures on the re-use of material originating from another author. Bast and Samuels cite no less an authority that Judge Richard Posner for the proposition that a judge is ‘not expected to produce original scholarship,’ and Le Clercq observes of legal writing that ‘it is no embarrassment to lean on another’s opinion: it is a requirement.’  Indeed, a Dworkinesque view of the judicial enterprise provides some support for the view that legal judgments are the product of combined minds over a significant period of time.  Lest this seem to suggest that intertextuality (in the postmodern sense) is, in fact, a characteristic of common law judgments, it should be remembered that the persuasiveness of a judgment lies in the ideas and views relied on being identified with great precision. The resignation of Federal Magistrate Rimmer in 2006 suggests that both Posner’s and Le Clercq’s views ought not to be read as excluding the concept of plagiarism from judicial practice. Indeed, it is from the very attribution of ideas, arguments and explicit text to identified authoritative sources that such ‘borrowed’ ideas gain their traction. By contrast, the imperatives of professional legal practice are driven not by scholarly values, but by the need for persuasiveness and efficiency, with many documents generated in practice being the product of multiple authors signed off by a supervising practitioner, or through the liberal utilisation of unacknowledged precedents prepared for previous legal transactions and or litigation, not necessarily authored by the current user. Scholarly practice must, therefore, seem quite alien to students who are focused on a career in legal practice. 
Once at university, students are confronted by a bewildering array of terminology used to describe academic misconduct: cheating (in a ‘traditional’ sense involving exams, and as a generic term covering any form of gaining an unfair advantage in assessment); academic dishonesty; excessive collaboration; collusion; copying; plagiarism; inadequate citation; and non-attribution of sources. 
Yet despite all universities having policies on academic misconduct which set out definitions of academic misconduct inviting disciplinary action, it has been suggested there is ‘justifiable confusion’ as to the fundamental principles of intellectual honesty, and that students often do not understand the ‘full set of behaviours that constitute cheating.’ 
Traditional concepts of academic and scholarly standards emphasise that plagiarism (as one of the paradigm examples of academic misconduct) is ‘theft, an offence, with effective sanctions in [appropriate] socialising and disciplining domains.’ More than the mere breach of a rule, plagiarism is the disregard of the normative values of the university as an institution imbricated in a global community of scholarship, reflecting its dedication to authenticity and integrity in both its learning, teaching, and research aspects. Not that universities are oblivious to the discourse surrounding authorship and originality. Indeed, it is within universities that the critical discourse is propagated, informed by a mix of intellectual, social, professional and moral and or philosophical issues. As yet, however, the traditional values of scholarship are still primary discourses informing universities’ expectations of student conduct, and the very scholars who question plagiarism’s provenance (perhaps ironically) nonetheless comply with its dictates. 
University policies on academic misconduct generally define such misconduct as a breach of academic integrity. Failure to maintain academic integrity is subdivided into three forms: cheating in examinations; plagiarism; and other forms. Cheating in exams is defined as including ‘any action or attempted action on the part of a student which might gain that student an unfair advantage in the examination.’ Plagiarism is defined as ‘representing another person's ... ideas or work as one's own,’ with an inclusive list of five forms of plagiarism, of which three are referable to the study of law: direct copying, summarising, or paraphrasing another person's ... work without appropriate acknowledgement ... using or developing an idea or hypothesis from another person's ... work without appropriate acknowledgement, ... [and] representing the work of another person ... as the student's own work. The residual category, other forms, includes, as relevant: giving or providing for sale one's own work to another person, company or web- site etc for copying or use by another person, ... purchasing or otherwise obtaining assessment material through individuals, companies or web-based tools/services, ... [and] collusion or collaborating with others where not authorised in the assessment requirements. 
In most universities, academic misconduct is classified as major or minor, with disciplinary responsibility for dealing with minor misconduct generally vested in the unit co-ordinator. An example given of minor academic misconduct relevant to law is ‘incidental plagiarism (inadequate, incorrect or inconsistent citation and/or referencing of sources, paraphrasing too close to the original).’  This may include copying a few sentences, and includes inadvertent copying, such as where a student’s notes do not differentiate between a copied passage and the student’s own commentary. This was always possible in the non-technological era but the probability of inadvertent copying has risen considerably with the advent of the copy and paste function, on-screen windows showing documents under construction, and electronic sources from which text can be copied and pasted, or dragged, directly into another document. 
Minor plagiarism thus has a number of different faces. It may be minor by virtue of its extent (with a rough guide of ‘a few sentences’). It may be minor if it lacks intent. Or it may be essentially technical, taking the form of incorrect citation, without intent to pass the work off as one’s own. 
Often, penalties cannot be applied to minor academic misconduct, the policy response being conceived as educative, rather than punitive. Records must, however, be kept of the management of the incident.  The form of such records is not generally prescribed, and may range from detailed emails through to a simple notation in the university’s records management system. 
Major academic misconduct is generally dealt with by a formal investigation process at a committee level, involving procedures modelled on quasi-judicial proceedings required to afford natural justice to the student;  and an obligation to make a decision based on ‘logical, credible and relevant evidence.’  The discipline committee must routinely make available a report of its findings to the student. For law students seeking admission, however, the matter does not end here. 
It is quite rare for the details of academic misconduct to be placed on the public record as a result of an application for admission, although universities themselves keep confidential records when any adverse findings are made against a student. Details of academic misconduct disclosed in an application for admission are generally not readily accessible to the public. Such details appear in judicial decisions only in the limited number of cases where either the local professional body (in Queensland, the Legal Practitioners Admissions Board (LPAB))  has actively opposed admission or the Court has exercised its discretion to explore an applicant’s suitability by way of a full hearing or by remitting the matter to a Judge of the Supreme Court to make specific findings of fact. 
There is, therefore, a dearth of written judgements relating to academic misconduct as a suitability matter relevant to admission. Many of the textbooks on professional ethics deal with admissions in little detail, focusing on criminal convictions (primarily because these have been the subject of high profile cases such as Re B or Wentworth). Texts prior to 2004, indeed, generally make no mention of academic misconduct. The author has identified 2004 as the watershed on the basis that in the decision in Re AJG that year that the Chief Justice of Queensland observed: Over the last couple of years, the Court has, in strong terms, emphasised the unacceptability of [academic misconduct] ... on the part of an applicant for admission to the legal profession. At the last Admissions Sitting, the Court indicated a strengthening of its response to situations like this on the basis adequate warning had been given. 
However, unlike ‘critical’ academics, the courts have not embraced, either in the admission process or in the general mode of legal analysis, a postmodern view of the nature of reality. The legal system is (and will presumably remain) steadfastly a creature of the Enlightenment, its analysis Cartesian in origin and its goal objectivity. Like the university qua institution, its values are unsurprisingly conventional. Prior to 2004, academic misconduct had been largely beneath the radar, and Re AJG became the seminal statement of principle which would be developed significantly in Queensland and in other jurisdictions.