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More information on ghostwriting
By Peter Geraghty
Last month’s article on ghostwriting has attracted some comments and additional information from interested readers.
The ghostwriting article cited to Utah State Bar opinion 74 (1981) for the proposition that there is a duty to disclose when the lawyer’s assistance is extensive, substantial or significant. Since the date of that opinion, Utah has issued Formal Opinion 08-01, Utah State Bar Ethics Advisory Op. Comm. Op. 08-01 (2008), a digest of which as it appears in the ABA/BNA Lawyers’ Manual on Professional Conduct states as follows:
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 to others of the nature or extent of such assistance. Undertaking to provide limited legal help does not generally alter any other aspect of the attorney’s professional responsibilities to the client.
The article also cited Florida State Bar Ass'n Comm. Professional Ethics Op. 79-7 (2000), New Hampshire Bar Ass'n Ethics Comm. article, Unbundled Services -- Assisting the Pro se Litigant (1999), and Massachusetts Bar Ass'n Comm. Professional Ethics Op. 98-1 (1998) for the same proposition put forth in the Utah bar opinion.
Since the issuance of the Florida opinion, Florida has added comments to its rule of professional conduct 4-1.2(c) Florida Rule of Professional Conduct 4-1.2(c) , an excerpt from which states as follows:
…If the lawyer assists a pro se litigant by drafting any document to be submitted to a court, the lawyer is not obligated to sign the document. However, the lawyer must indicate “Prepared with the assistance of counsel” on the document to avoid misleading the court which otherwise might be under the impression that the person, who appears to be proceeding pro se, has received no assistance from a lawyer.
Since the issuance of New Hampshire Opinion, in 2007 the New Hampshire Supreme Court has adopted New Hampshire Rule of Civil Procedure 17 subpart (g) of which states as follows:
(g) Pleading prepared for Unrepresented Party. When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the court in a proceeding in which (1) the attorney is not entering any appearance, or (2) the attorney has entered a Limited Appearance which does not include representation regarding such document, the attorney is not required to disclose the attorney’s name on such 21 pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.” The unrepresented party must comply with this required disclosure. Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a pleading to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 18(a) despite the fact the pleading need not be signed by the attorney.
And, since the issuance of the Massachusetts bar opinion, in 2009 the Massachusetts Supreme Court has adopted Supreme Judicial Court Order In Re: Limited Assistance Representation, an excerpt from which follows:
4. Assistance in the preparation of documents.
An attorney may assist a client in preparing a pleading, motion or other document to be signed and filed in court by the client, a practice sometimes referred to as "ghostwriting." In such cases, the attorney shall insert the notation "prepared with assistance of counsel" on any pleading, motion or other document prepared by the attorney. The attorney is not required to sign the pleading, motion or document, and the filing of such pleading, motion or document shall not constitute an appearance by the attorney.
Finally, readers may also be interested in Kansas Ethics Opinion No. 09-01 (2009), a digest of which from the Lawyers’ Manual states:
An attorney may offer limited scope representation. Any lawyer who prepares a pleading for an otherwise pro se litigant must disclose such assistance, including the phrase “Prepared with Assistance of Counsel” on the pleading. The attorney need not provide identifying information such as name, bar number or address.
For further information on unbundling, See the ABA Standing Committee on the Delivery of Legal Services Pro Se/Unbundling Resource Center. A list of state bar ethics opinions and current rules that address various unbundling issues is also available.