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The Ethics of Ghostwriting for Pro Se Litigants

Thursday, December 1, 2016 5:32
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Ghostwriter

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.

State Source “Ghostwritten” Pleadings Allowed Requirement to Disclose Identity of Ghostwriters
Alabama Ala. Bar Ass’n Ethics Op. 2010-01 (2010) Yes No
Alaska Alaska Bar Ass’n Ethics Op. 93-1 (1993) Yes No
Arizona Ariz. State Bar Comm. on Rules of Prof’l Conduct Formal Op. 05-06 Yes No
Arkansas In re Rules of Prof’l Conduct (2016 Ark. 204) Yes TBD
California Cal. Rules of Court 3.37(a) Yes No
Colorado Revised Colo. Bar Ass’n Ethics Op. 101, Colo. R. of Civ. P. 11(b) (1998) Yes Yes
Connecticut Conn. Bar Ass’n Informal Op. 98-5 (1998) Yes Yes
Delaware Del. State Bar Ass’n Comm. on Prof’l Ethics, Op. 1994-2 (1994) Yes Yes
Florida Fla. Bar Ass’n Op. 79-7 (2000) Yes No
Georgia Ga. Code of Prof’l Conduct Rule 1.2(c); In re Burton, No. 03-92191-JB, 2006 WL 6591614 (Bankr. N.D. Ga. Nov. 28, 2006) Yes TBD
Hawaii Haw. Rule of Prof’l Conduct 1.2(c) & 6.5; Haw. Revised Code of Jud. Conduct Rule 2.2 cmt 4 TBD TBD
Idaho Idaho Rules of Prof’l Conduct 1.2(c); 6.5; Idaho Court Admin. R. 53 TBD TBD
Illinois Sup. Ct. R. 11, Comm. cmt to R. 137, Ill. State Bar Ass’n Op. 849 (1983); Op. 85-06 (1985) Yes No
Indiana Ind. Bar Ass’n Yes TBD
Iowa Iowa State Bar Ass’n Op. 96-31 (1997), 94-35 (1995) Yes Yes
Kansas Kan. Ethics Op. 09-01 (2009) Yes No
Kentucky Ky. R. of Prof’l Conduct 1.2(c); Ky. Bar Ass’n, Ethics Op. KBA E-343 (1991) Yes Yes
Louisiana La. Sup. Ct. Pro Se Guidelines TBD TBD
Maine Me. Ethics Comm’n Op. 89 Yes No
Maryland Md. Limited Scope Rule Changes (2015) Yes Sometimes
Massachusetts Mass. Bar Ass’n Comm. on Prof’l Ethics, Op. 98-1 (1998) No No
Michigan State Bar of Mich. Op. RI-347 (2010) Yes No
Minnesota Minn. Pro Se Implementation Comm. Report Yes No
Mississippi Model R. 1.2; In re Richmond No. 16-10748-NPO (2016) TBD Yes
Missouri Mo. R. 4-1.2, Rule 55.03(a) Yes No
Montana Order in re Changes to the Mont. R. Civ. P.; Mont. R. Prof’l Conduct (2010) Yes No
Nebraska Neb. R. of Prof’l Conduct 3-501.2(c)73; Ct. R. Pleading in Civil Cases 6-1111(b)74 Yes Yes
Nevada State Bar of Nev. Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. No. 34 (2006, revised 2009); Nev. Rule 5.28 Yes Yes
New Hampshire N.H. Bar Ass’n Ethics Comm., Unbundled Services – Assisting the Pro Se Litigant (1999) Yes No
New Jersey N.J. Sup. Ct. Advisory Comm. on Prof’l Ethics, Op. 713 (2008) Yes Sometimes
New Mexico N.M. R. of Prof’l Conduct R. 16-303 cmt. (2008) Yes No
New York N.Y. R. of Prof’l Conduct 1.2(c); 6.5; N.Y. State Bar Ass’n Op. 613 (1990); N.Y. County Law Ass’n Comm. on Prof’l Ethics Op. 742 (2010) Yes Sometimes
North Carolina N.C. State Bar, 2008 Formal Ethics Op. 3 (2009); 2005-10 (2005) Yes No
North Dakota N.D. R. of Prof’l Conduct 1.2(c); N.D. R. Civ. P. 5(5); 11(e) Yes TBD
Ohio Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio), Report & Recommendations of Sup. Ct. Task Force on Pro Se; Indigent Litigants (2006) TBD TBD
Oklahoma Okla. R. of Prof’l Conduct 1.2(c); 5 Okla. Stats. §5; Communication Obligations to Clients, 76 Okla. Bar J. 24 (Sep 2005) TBD TBD
Oregon Or. Uniform Trial Ct. R. 2.010(7) Yes Yes
Pennsylvania Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility and Pa. Bar Ass’n Prof’l Guidance Comm. Joint Formal Op. 2011-100 Yes No
Rhode Island Super. R. Civ. P. 11, Canon 3(D) of Art VI Code of Jud. Conduct, FIA Card Services, N.A. v. Pichette Yes Yes
South Carolina S.C. R. of Prof’l Conduct Rule 3.3(a)(2), In re Mungo, 305 B.R. 762 (Bankr. D.S.C. 2003) TBD Yes
South Dakota S.D. R. of Prof’l Conduct 1.2(c) TBD TBD
Tennessee Bd. of Prof’l Responsibility of Sup. Ct. of Tenn., Op. 2007-F-153 (2007) Yes Sometimes
Texas Texas Lawyer TBD TBD
Utah Utah State Bar Ethics Advisory Op. 08-01 (2008); Op. 74 (1981) Yes No
Vermont Vt. Rules of Prof’l Conduct R. 1.2 cmt. 3 Yes No
Virginia Va. State Bar Ass’n Legal Ethics Op. 1761 (2002) Yes Sometimes
Washington Wash. Sup. Ct. R. 11(b) Yes Yes
Washington D.C. D.C. Bar Op. 330 (2005) Yes No
West Virginia W.V. Lawyer Disc. Board L.E.O 2010-01 Yes Yes
Wisconsin Wis. State Bar TBD TBD
Wyoming Wyo. R. of Prof’l Conduct R. 1.2 cmt 3 Yes Yes

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

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