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By Peter Geraghty, Director, ETHICSearch
You have been approached by an individual who intends to file suit pro se against his former business partner for breach of contract. He has asked you to review and comment on the complaint he has drafted, and for general legal advice about how to handle the matter. So far, you have not entered an appearance in the case and the court and opposing party are not aware that you are involved in the matter.
Are you obligated to disclose either to the court or to the opposing party that you have rendered such assistance?
ABA Formal Opinion 07-446
In ABA Formal Opinion 07-446 Undisclosed Legal Assistance to Pro Se Litigants (2007), the ABA Standing Committee on Ethics and Professional Responsibility stated that lawyers can furnish such assistance without disclosing to the court or to the opposing party that they had done so provided that the failure to disclose would not amount to fraudulent or dishonest conduct by clients. The opinion stated:
Whether the lawyer must see to it that the client makes some disclosure to the tribunal (or makes some disclosure independently) depends on whether the fact of assistance is material to the matter, that is, whether the failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the part of the client, thereby involving the lawyer in conduct violative of Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). In our opinion, the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.
The committee noted that such assistance is a form of “unbundling” whereby a lawyer performs a limited set of tasks relating to the representation under Model Rule 1.2(c) as opposed to handling all aspects of a matter.
The committee stated that some of the arguments advanced against allowing lawyers to provide such assistance include the concern that pro se litigants are accorded special treatment by the court, so that to permit lawyers to provide such assistance without notifying the court would result in an unfair advantage for the litigant. The committee found this to be without merit, since it would be obvious on the face of the pleadings as to whether a lawyer was involved. Furthermore, the committee noted, the fact that the litigant has received assistance should not result in an unfair advantage simply because pleadings filed with the court must pass muster on their own merit:
…A court that refuses to dismiss or enter summary judgment against a non ghostwritten pro se pleading that lacks essential facts or elements commits reversible error in the same manner as if it refuses to deny such dispositive motions against an attorney-drafted complaint – Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urb. L.J. 1145 (2002)
Finally, the committee noted that the lawyer would not be acting dishonestly in providing such assistance unless the client were to “make a statement that could be attributed to the lawyer that the documents were prepared without legal assistance.
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State bar ethics opinions; case law
There have been a number of state bar ethics opinions that pre-date the ABA Formal Opinion. As discussed and cited in New Jersey Advisory Committee on Professional Ethics Opinion 713 (2008), some of these opinions do not require disclosure. See, Los Angeles County Bar Ass'n Professional Responsibility and Ethics Comm. Op. 502 (1999); Los Angeles County Bar Ass'n Professional Responsibility and Ethics Comm. Op. 483 (1995) and State Bar of Arizona Comm. on the Rules of Professional Conduct Op. 05-06 (2005).
Other opinions have found that ghostwriting is unethical per se. See, Iowa Supreme Court Bd. of Professional Ethics and Conduct Op. 94-35 (1995); Iowa Supreme Court Bd. of Professional Ethics and Conduct Op. 96-31 (1997); Association of the Bar of the City of New York Comm. on Professional and Judicial Ethics Op. 1987-2 (1987); New York State Bar Ass'n Comm. on Professional Ethics Op. 613 (1990).
Still other opinions find that there is a duty to disclose when the lawyer’s assistance is extensive, substantial or significant. See, Alaska Bar Ass'n Ethics Comm. Op. 93-1 (1993); Connecticut Bar Ass'n Comm. on Professional Ethics Op. 98-5 (1998); Delaware State Bar Ass'n Comm. on Professional Ethics Op. 1994-2 (1994); Florida State Bar Ass'n Comm. on Professional Ethics Op. 79-7 (2000); Massachusetts Bar Ass'n Comm. on Professional Ethics Op. 98-1 (1998); New Hampshire Bar Ass'n Ethics Comm., Unbundled Services -- Assisting the Pro se Litigant (1999); Kentucky Bar Ass'n Op. E-343 (1991); Utah State Bar Ethics Comm. Op. 74 (1981).
The New Jersey Committee began its analysis by noting the changes made to ABA Model Rules 1.2(c) and the addition of Model Rule 6.5 Nonprofit And Court-Annexed Limited Legal Services Programs that were proposed by the ABA Ethics 2000 Commission that demonstrated the ABA’s “concern for expanding legal assistance to the unrepresented.”
The New Jersey Committee discussed the applicability of Rule 1.2(c), stating that the recipient of such assistance must “understand, and agree to the extent of the limited assistance.” The committee also noted the full applicability of Rule 1.6(a) Confidentiality of Information to the limited representation scenario.
The New Jersey Committee did, however find that disclosure would be required under circumstances
…where such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance, there must be full disclosure to the tribunal. Similarly, disclosure is required when, given all the facts, the lawyer, not the pro se litigant, is in fact effectively in control of the final form and wording of the pleadings and conduct of the litigation. If neither of these required disclosure situations is present, and the limited assistance is simply an effort by an attorney to aid someone who is financially unable to secure an attorney, but is not part of an organized program, disclosure is not required.
In North Carolina Opinion 2008-3 (2008), the Ethics Committee of the North Carolina State Bar, agreeing with the ABA committee’s analysis stated that a lawyer may provide such assistance without disclosing to the court or opposing unless required to do so by substantive law or court order. The North Carolina committee noted further that the lawyer must also comply with the prohibition against asserting frivolous claims under Model Rule 3.1 Meritorious Claims and Contentions. It also stated that to advise a client to
…appear pro se for the sole purpose of gaining the tactical advantage of judicial leniency is providing incompetent legal advice in violation of Rule 1.1 and such conduct is prohibited on this basis regardless of whether there is disclosure to the court of the lawyer's assistance.
State Bar of Michigan Opinion RI-347 (2010), also in substantial agreement with the ABA opinion, stated that disclosure of the lawyer’s role in a litigation setting is not required unless the client makes an affirmative representation that he is unrepresented. The Michigan committee also considered whether the lawyer could disclose the fact that he had provided assistance without the consent of the pro se litigant if ordered to do so by the court. The committee stated:
…both MRPC 1.6(c)(2) and the Model Rule permit disclosure when required by law or court order. We do not purport to interpret the question whether a court rule is a "law or court order" as that is beyond the scope of this opinion. To avoid the possibility of a confidentiality issue, should it later become necessary for the lawyer to disclose his or her involvement, a lawyer providing limited legal service should at the outset of the representation obtain the consent of the assisted party that the lawyer's participation may be disclosed to the court.
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See Also New York County Opinion 742 (2010). This opinion provides an extensive analysis of the applicable case law on this subject and concluded as follows:
Disclosure is necessary when mandated by (1) a procedural rule, (2) a court rule, (3) a particular judge's rale, (4) a judge's order in a specific case, or in any other situation in which the failure to disclose an attorney's assistance in ghostwriting would constitute a misrepresentation or otherwise violate a law or an attorney's ethical obligations. In cases where disclosure is necessary, unless required by the particular rale, order or circumstance mandating disclosure, the attorney need not reveal his or her identity and may instead indicate on the ghostwritten document that it was “Prepared with the assistance of counsel admitted in New York.”
Notably, there is some concern that if permitted, the limited representation of a pro se litigant might become so expansive that the lawyer will be de facto acting as litigation counsel without ever having to appear before the court or having his or her identity disclosed to the adversary. This is one circumstance where disclosure to the court and/or adversary of the attorney's involvement may very well be necessary because a failure to disclose could constitute a misrepresentation or otherwise violate a rule of professional conduct.
Note that the New York version of Rule 1.2(c), unlike the ABA Model Rule specifically addresses the disclosure issue under limited scope representation situations. The New York rule states:
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.(emphasis added).
The New York committee observed that the New York courts have yet to interpret this rule.
Nevada Opinion 34 (originally issues on 12/11/06; revised on 6/24/09) takes a more restrictive view. The Nevada committee stated that under circumstances where a lawyer provides “substantial” legal assistance to a pro se litigant, such assistance must be disclosed to the court “upon every paper filed with the court for which the “ghost-lawyer” gave “substantial assistance” to the pro se litigant by drafting or otherwise.” The committee also found that a “ghost lawyer would also be required to notify opposing counsel of his assistance in non litigation settings. The committee stated:
This Committee rejects the new view of the ABA Standing Committee on Ethics and Professional Responsibility expressed in ABA Formal Opinion 07-446 (May 5, 2007). The Committee believes that the better view is one which strikes a proper balance between the public policy of serving clients with unbundled legal services and the view that even disclosed “ghost-lawyering” is improper. This Committee adopts the rule that it is unethical to act as a “ghost-lawyer,” unless both the “ghost-lawyer’s” assistance and identity  are disclosed to the court by the signature of the “ghost-lawyer” under Rule 11 upon every paper filed with the court for which the “ghost-lawyer” gave substantial assistance to the pro se litigant by drafting or otherwise.
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There is case law on this subject, much of it finding that ghostwriting is violative of Rule 11 or is otherwise unprofessional. See the following excerpt from the chapter entitled, “Rule 11” as it appears at page 61:101 of the ABA/BNA Lawyers’ Manual on Professional Conduct (last updated in 2008):
…Lawyers who help a pro se litigant by “ghostwriting” a pleading or other court document without revealing their role in creating the document are arguably circumventing their Rule 11 obligation to certify that the pleadings have merit. See Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971); In re Merriam, 250 B.R. 724 (Bankr. D. Colo. 2000); Johnson v. Bd. of County Comm'rs, 868 F. Supp. 1226 (D. Colo. 1994), aff'd on other grounds, 85 F.3d 489 (10th Cir. 1996); Laremont-Lopez v. Se. Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1077 (E.D. Va. 1997), aff'd, 172 F.3d 44 (4th Cir. 1999); see also Ricotta v. California, 4 F. Supp.2d 961, 987 (S.D. Cal. 1998), aff'd, 173 F.3d 861 (9th Cir. 1999) (ghostwriting 75-100 percent of litigant's pleadings deemed unprofessional); Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426, 435 (Bankr. D. Mont. 1999) (ghostwriting violates court rules and ethics); Wesley v. Don Stein Buick Inc., 987 F. Supp. 884, 885-86 (D. Kan. 1997) (expressing legal and ethical concerns); United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 1997) (implicates attorney's duty of candor to court, interferes with court's ability to supervise litigation, and misrepresents litigant's right to more liberal construction as a pro se litigant); see also New York City Ethics Op. 1987-2 (1987) (requiring disclosure); New York State Ethics Op. 613 (1990) (same).
For a scholarly analysis of the issues involved in the ghostwriting context, See, Robbins, “Ghostwriting, Filling in the Gaps of Pro Se Prisoner’s Access to the Courts,” 23 Geo. J. Legal Ethics 271 (2010); Johnson, “Happy Birthday Rule 11: Integrating Legal Ethics & Professional Responsibility With Federal Rule of Civil Procedure 11,” 37 Loy. L.A. L. Rev. 819 (2004); Goldschmidt, “In Defense of Ghostwriting,” 29 Fordham Urb. L.J. 1145 (2002).
As always, in view of the divergence of opinion on this topic, check your local rules, ethics opinions and case law before agreeing to provide undisclosed legal assistance to clients.