UPDATED! Increasing Access: Ghostwriting

IMPORTANT UPDATE! 

Thank you to John Serafino of Ryan Smith Carbine for pointing out that Local Rule 32.2 of the US Court of Appeals for the Second Circuit provides:

“A pro se party who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’ Unless the Court orders otherwise, the attorney’s identity and address need not be disclosed.”

Here’s my updated post:

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This is part 3 in my series on using the Rules of Professional Conduct to increase access to legal services.  It focuses on Rule 1.2(c) and ghostwriting.  Making it clear that ghostwriting does not violate the rules might encourage more lawyers to market limited services and, in turn, expand access to legal services.

Part 1 – Increasing Access: It MUST be Ethical.

Part 2 – Increasing Access: Limited Licenses .

Rule 1.2(c) authorizes a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”  Limited-scope representation is often referred to as “unbundling” or “providing unbundled legal services.”  Unbundling is not a new concept.  Still, it’s an underutilized tool.

The Reporter’s Notes to the 2009 Amendments to Rule 1.2 include instructive comments. For example:

• “Although lawyers enter into fee agreements in a variety of practice settings, this proposal is intended in part to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal services to low or moderate-income persons who otherwise would be unable to obtain counsel.”

And:

• “In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”

A word of caution: a limitation must be reasonable under the circumstances. So, while there is not per se prohibition on “excluding actions that the client thinks are too costly,” a lawyer cannot exclude means or actions that are part and parcel of the duty to provide a client with competent representation.

Limited representation can take several forms. One is ghostwriting.  For the purposes of this post, “ghostwriting” is when a lawyer drafts a pleading for a client, and neither the lawyer nor the client discloses the lawyer’s involvement to the court or to the opposing party.

For many years, there was great debate as to whether ghostwriting was ethical.  Indeed, in 2007, the ABA Journal published an article entitled Scary Parts of Ghostwriting.  While highlighting the scary (aka: “unethical”) parts of ghostwriting, the article called attention to two key factors.

The first was the “Trendy Dilemma.”  As the ABA Journal described the trend:

• ” . . . courts around the country increasingly are coming to grips with the practice, one of a number of services that lawyers are offering as part of the recent trend of unbundling. In contrast with traditional full-service representation, lawyers agree to be responsible for only carefully delineated portions of a client’s case. In addition to ghostwriting, services can include drafting a settlement agreement without participating in the negotiations, researching a legal issue for a client without getting involved in the larger case, or reviewing client-drafted documents strictly for compliance with court rules.”

The second was ABA Formal Opinion 07-446.  In the opinion, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that ghostwriting is a permissible form of limited representation allowed by Rule 1.2(c), stating:

• “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

Opponents had often raised two points while arguing that ghostwriting was unethical.  Some continue to raise the arguments today.

One argument is that judges give liberal construction to pro se pleadings, thus it’s unfair for a litigant not to disclose having received legal assistance.  The ABA’s response:“if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal” and there will be no reason to apply liberal construction.

The Committee added:

• “[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage. Because there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed.”

Doesn’t this make sense? It does to me.

Another argument is that the failure to disclose a lawyer’s involvement constitutes misrepresentation by omission.  The ABA (and several bar associations) disagree.  Their position is that it is only dishonest if (1) the litigant is asked and lies; or (2) local court rules require the disclosure of trained legal assistance and no disclosure is made.   Absent an affirmative misrepresentation or a violation of court rules, it’s not dishonest.

Again, this makes sense to me.

Of course, as John points out, Local Rule 32.2 requires a self-represented litigant “who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’”  It strikes me, then, that the lawyer who provides the assistance has a duty to advise the client of the disclosure requirement.

Here are my thoughts on ghostwriting:

• For simple pleadings, we should consider it a permissible form of limited representation authorized by Rule 1.2(c).
• For more substantive pleadings, we should, at the very least, remain open to the same.
• The next disciplinary counsel should commit to vigorously investigate & prosecute ghost writers who fail to provide competent advice or otherwise violate the Rules of Professional Conduct.

At least one New England state agrees.  In 2010, the Connecticut Bar Association issued Informal Opinion 2010-04.  The CBA concluded:

• “We therefore now conclude that under the Connecticut Rules of Professional Conduct a lawyer who prepares and controls the content of a pleading, brief or other document to be filed with a court is not required to inform the court that the document was prepared by the lawyer. Nor do the Rules require that the lawyer demand that the pro se litigant make such disclosure. To the extent, however, that a law of the jurisdiction or a tribunal rule requires disclosure of such assistance, the lawyer must, of course, comply with the law or tribunal rule.”

I agree.

Ghostwriting will not bridge the access gap or suddenly make legal services available to everyone.  However, dispelling the notion that ghostwriting puts a lawyer’s license at risk will only serve to increase access to legal services.