The Ethics of Ghostwriting for Pro Se Litigants

Unbundling makes legal services more accessible to populations that might not otherwise fit the traditional mold of full-service legal representation. One of the most common forms of unbundled legal services is the practice of ghostwriting motions, pleadings, and other documents for use by pro se parties in litigation.

As the number of pro se litigants continues to grow, ghostwriting can address part of the need for accessible limited-scope legal services. But ghostwriting also presents some ethical issues.

In 2007, the ABA Committee on Ethics and Professional Responsibility issued a formal opinion opening the door to ghostwriting pursuant to Rule 1.2(c) of the Model Rules of Professional Conduct. This includes drafting written submissions without disclosing it to the court. Since then, many states and local jurisdictions have followed suit. Some jurisdictions have rejected the ABA’s stance, and others have yet even to address ghostwriting.

Bar associations and courts across the country have reached conflicting conclusions on disclosure requirements for ghostwriting, ranging from no disclosure of the ghostwriter’s assistance or identity to disclosure of the ghostwriter’s full contact information and a signature. Bar associations requiring extensive disclosure have decided the accountability of “fly-by-night” ghostwriters outweighs the desire for anonymity due to the preferences of pro se litigants or of ghostwriters who do not want to have their identity attached to a document when there is no guarantee how the litigant will actually use it in court.

Falling in between the two extremes, some states require some designation that the document was prepared with the assistance of a lawyer or only require disclosure of the identity of a ghostwriter who provides “substantial assistance.” Under the “substantial assistance” approach, lawyers may provide pro se litigants a minimal level of help without disclosure. Because jurisdictions differ on what type of assistance triggers the duty to disclose, discerning the obligations associated with ghostwriting necessitates a close reading of a jurisdiction’s rules.

Signers Beware

In a handful of states, merely helping fill out a form requires disclosure of the supposed ghostwriter’s name. Some states reason that ghostwritten filings must identify the lawyer to avoid misleading the court, whereas others decided that ghostwritten legal documents do not require a signature or any indication of the lawyer’s identity at all. Instead, these states generally still require some label indicating that the document was prepared with the assistance of a lawyer. The requirement that a filing include the label “prepared by a lawyer” may seem insignificant, but forgetting that designation can result in substantial consequences—including suspension.

Still other states caution of the dangers of including too much of the lawyers’ information in a filing, reasoning that it may create the appearance of representation beyond the scope of the document or imply the lawyer is guaranteeing that the filing is well-grounded in fact and law.  Procedural rules generally apply only if a lawyer implicitly guarantees the content of the ghostwritten filing by signing it, unless local or jurisdictional rules state otherwise.

Other applicable ethical rules, statutes, court orders, and other sources of law (or even as a prerequisite for the pro se litigant to recover attorney’s fees covering the cost of ghostwriting in some states) may nevertheless compel disclosure. Various federal courts may—and often do—have markedly different rules governing ghostwriting than the state courts. Bar associations generally encourage ghostwriters to consider any authority directly governing the allowance of ghostwriting that may limit or even forbid the practice in some circumstances.

Grievances with Ghostwriting

Opponents of ghostwriting note that a litigant using a ghostwriter may unfairly benefit from the court’s leniency that often comes with pro se pleadings. Those critics argue that pro se litigants with ghostwritten filings would unfairly benefit from “special treatment” by judges.On the other side, critics claim that the ghostwriting may backfire if a pro se litigant is unable to explain the contents of the ghostwritten document.

The ABA rejected the notion that ghostwriting would give pro se litigants both the assistance of counsel and greater latitude from the judge than a lawyer’s filing would receive, noting that if the lawyer provided competent assistance, then the judge should easily discern the “fingerprints” of a lawyer on the filing.

Still others claim that ghostwriting offends Model Rule 8.4’s proscription against dishonesty, fraud, deceit, or misrepresentation. However, the ABA’s 2007 formal opinion rejected this notion that failure to disclose the legal assistance provided would mislead the court. State and local jurisdictional rules notwithstanding, the ABA concluded that ghostwriters make no statement of any kind to the tribunal as to the type or degree of legal services provided to the pro se litigant. Consequently, the court and opposing counsel will only be misled if the litigant indicates that the document in question was prepared without legal assistance—at least according to the ABA Model Rules.

Ghostwriting Is Not so Scary Anymore

As the limited-scope representation movement continues to gain momentum, state ethics rules are still changing to accommodate the practice of legal ghostwriting. Earlier in 2016, Colorado became the most recent state to issue comprehensive guidance on the ethical rules governing unbundled legal services including ghostwriting. Some bar associations have even withdrawn outdated opinions in light of other state bar associations’ concerns about the effect of such a prohibition on the accessibility of legal services to pro se litigants.

As courts and bar associations relax restrictions on unbundled legal services, ghostwriting is no longer as risky as it once was. Lawyers have no reason to be afraid, so long as they don’t let rules on ghostwriting take them by surprise. 

Here are the ethics rules on ghostwriting for pro se clients in all 50 states and the District of Columbia.

The Ethics of Ghostwriting for Pro Se Litigants was originally published on Lawyerist.com.