TRIAL PRACTICE
Ghostwriter: A New Legal Superhero?

By J. Vincent Aprile II

Criminal defense attorneys, whether institutional public defenders or those in private practice, frequently encounter situations in which an individual wants to proceed in a criminal matter pro se, for any number of legitimate reasons, but also wants the limited assistance of an attorney at some point in the proceedings, often in the drafting of the initiating document.

The concept of ghostwriting a legal document (i.e., authoring a legal document for another who is presumed to be the actual author), has been a perplexing problem for lawyers, clients, courts, and even bar associations. In true ghostwriting, there would be no disclosure of the authoring lawyer’s involvement to the court or opposing counsel. As a result, analysts and courts have argued that ghostwriting creates major ethical problems for all involved.

First, has fraud been committed on the court when it receives a state habeas corpus motion and supporting memorandum of law ostensibly submitted pro se by a nonlawyer party but in reality authored by an undisclosed lawyer? Second, has the lawyer evaded his or her responsibilities under the ethical and procedural rules that attach to a document when it is signed, sealed, and delivered to the court? Is the ghostwriting lawyer absolved of the obligations to the tribunal to investigate fully the facts and the law presented in the document? As the signer of the document, is the nonlawyer party now the only one responsible for any factual or legal deficits contained in the filing? Third, what recourse does the client of the ghostwriter have for legal malpractice if the ghostwriting attorney mis- analyzes the facts or the law in drafting the document?

In May 2007 the American Bar Association issued Formal Opinion 07-446, entitled “Undisclosed Legal Assistance to Pro Se Litigants,” which addressed the ethical issues surrounding legal ghostwriting. The opinion equates legal ghostwriting or even the ghost reviewing of legal documents as a form of the “unbundling” of legal services that allows a lawyer to perform specified tasks for a client without handling the entire matter. Lawyers are ethically permitted to limit the objectives of the representation if the client consents after consultation. The crux of the opinion, however, deals with whether professional ethics require a lawyer providing unbundled legal services either to disclose or to ensure the disclosure of the lawyer’s involvement or the extent of that involvement to the court or the opposing party.

The opinion posits a jurisdiction where no law or procedural rule requires disclosure of the lawyer’s participation or bars litigants in a particular forum from retaining lawyers or otherwise governs undisclosed drafting or legal advice. The existence of such laws or procedural rules would generate obligations other than ethical duties or obligations.

Conflicting conclusions. Ethics committees have reached conflicting conclusions on these questions. Some committees have reasoned that no disclosure is required, whereas other committees have decided that the identity of the lawyer providing the legal assistance must be revealed to avoid misleading opposing counsel and the tribunal.

Courts that have examined the issue of ghostwriting have expressed concern on three levels. First, courts often interpret filings by pro se litigants liberally. In the case of a ghostwritten filing, this practice would, according to some, unfairly give the pro se litigant both the assistance of counsel and greater latitude from the judge than a lawyer’s filing would receive. The ABA opinion rejects the unwarranted “special treatment” criticism, noting that if the lawyer has truly provided effective assistance, the judge will readily note the fingerprints of a lawyer on the filing.

If, on the other hand, the ghostwriter has not provided effective assistance, what unfair advantage has the party with a ghostwritten filing secured? Case law from many jurisdictions makes it abundantly clear that the liberal interpretation of pro se filings seldom, if ever, allow an unrepresented party to survive a motion to dismiss for failure to state a claim upon which relief can be granted or a summary judgment motion. When the scenario is examined closely, a ghostwritten filing is unlikely to garner any unfair advantage for the pro se litigant who has had the undisclosed services of a ghostwriter.

Second, courts and commentators have suggested that ghostwriting allows lawyers to draft filings that do not comply with procedural rules that require counsel to sign documents submitted to the court and by that signature guarantee that the filing is well grounded in fact and law. In response to this contention, the ethics opinion emphasizes that these procedural rules apply only when a lawyer signs the filing, implicitly warranting the contents. In fact, these procedural rules routinely state that when a party, unrepresented by counsel, signs the filing, the party as signatory provides the warranty.

The final complaint is that a ghostwritten filing is inherently a practice that offends the ethical proscription against a lawyer engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The ABA ethics opinion rejects the assumption that the failure of the lawyer to disclose the legal assistance provided would mislead the court. In actuality, the ghostwriter makes no statement of any kind to the tribunal as to the type or degree of legal representation provided to the pro se litigant. Consequently, the tribunal will only be misled if the unrepresented litigant volunteers or in response to a question answers that the document in question was prepared without any legal assistance.

Limited involvement. The unbundling of legal services and the lack of an ethical obligation to disclose ghostwriting, ghost reviewing, and ghost coaching may allow criminal defense attorneys to contract to provide limited, undisclosed, behind-the-scenes legal representation on a limited segment of a criminal prosecution. For example, a criminal defendant who wishes to proceed pro se may seek the assistance of a criminal defense lawyer to ghostwrite a motion to suppress the fruits of a police search or an involuntary confession and to prepare behind-the-scenes the defendant to conduct pro se the suppression hearing on the motion.

Some criminal defense lawyers will welcome this type of ghostwriting and unbundling of legal services. Others, who do not wish to cede any portion of the trying of a case to the client, will not be comfortable ghostwriting a filing and strategizing the pro se litigant’s battle plan. However, for those who do wish to practice without making an appearance during even a portion of a case, the ethical freedom to decline to disclose their ghosting is attractive. This is particularly true because the ghost lawyer has no guarantee that the client will follow the game plan as created and designed by the lawyer.

Nevertheless, the flexibility of representation and the availability of limited representation afforded by ghostwriting and unbundled legal services should be welcomed by lawyer and client alike. This approach ensures that clients who either cannot afford a lawyer in an ancillary criminal proceeding or do not want to turn their case over completely to a lawyer will have more options. And, in some circumstances, clients will seek to act pro se for strategic reasons in certain proceedings—such as collateral attacks on their convictions, parole applications, and appellate motions for discretionary review—but with the behind-the-scenes, undisclosed legal representation of a ghostwriter and legal coach.

For More Information About the Criminal Justice Section

- This article is an abridged and edited version of one that originally appeared on page 44 of Criminal Justice, Summer 2008 (23:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/crimjust.

- Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; White Collar Crime Newsletter, three times per year (electronic).

- Books and Other Recent Publications: Trial Tactics; Street Legal; The Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.

J. Vincent Aprile II practices at Lynch, Cox, Gilman & Mahan, P.S.C., in Louisville, Kentucky, where he specializes in criminal law, both trial and appeal, employment law, and litigation. He may be reached at vaprile@lcgandm.com.

Copyright 2009

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