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Unbundling Resource Center


The Strand on Ocean Drive Condominium Association, Inc., vs. Jeffrey Haym; John Doe Tenant; and, Jane Doe Tenant, In The Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, CASE NO. 2017 025588 CA 01 (February 2, 2018)

A Florida Circuit Court Judge has ordered Ice Legal P.A., a law firm who had prepared documents for an otherwise pro se defendant, to either file a notice of appearance or notice of non-representation. As set out in the responding Notice of Non-Appearance of Limited-Representation Counsel, at a January 25thhearing, upon noticing that the defendant’s motion contained the language “Prepared with Assistance of Counsel,” the Court refused to hear the defendant’s motion on the grounds that the defendant was represented by counsel who needed to be present at the hearing and further ordered reimbursement to the plaintiff for an hour’s worth of legal fees. Read the full Notice asking that the Court vacate the Order here, which lays out the argument that: the Court’s order exceeds the reach of its personal jurisdiction because Ice Legal had not appeared in the case as either a party or an attorney of record; that not only does Florida Bar Rule 4-1.2 (c) formally approve of unbundling, that both the ABA and the Florida Bar Association encourage its use as a means to address the access to justice problem; and that the comments to 4-1.2 (c) provide that a lawyer drafting documents for a pro se litigant need not sign the documents but must include the language “Prepared with the assistance of counsel.”

NWIRP v. Sessions, July 27, 2017

See United States District Court for the Western District of Washington: NWIRP v. Sessions, 17-cv-00716 (May 17, 2017)  below for background. The Northwest Immigrants Right Project (NWIRP) Motion for Preliminary Injunction is GRANTED. Defendants are ENJOINED and RESTRAINED from: (a) Enforcing the cease and desist letter, dated April 5, 2017, from Defendant Barnes and EOIR’s Office of General Counsel to NWIRP; and (b) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against Plaintiffs and all other attorneys under their supervision or control, or who are otherwise associated with them. The Preliminary Injunction is granted on a nationwide basis as to any other similarly situated non-profit organizations who, like NWIRP, self-identify and disclose their assistance on pro se filings. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this preliminary injunction on a nationwide basis.

United States District Court for the Western District of Washington: NWIRP v. Sessions, 17-cv-00716 (May 17, 2017)

In 2008, the Department of Justices’ Executive Office for Immigration Review (EOIR) promulgated 8 C.F.R. Section 1003.102(t), a disciplinary rule that requires any attorney who “engage[s] in practice or preparation” of an immigration case to file a notice of appearance. The Northwest Immigrants Right Project (NWIRP) is a nonprofit that provides limited scope services to otherwise pro se litigants in removal proceedings. Back in 2008, the NWIRP met with the local immigration court administrator to discuss the rule’s impact and agreed that it would notify the court when it assisted with any pro se motion. The NWIRP proceeded as such until April 13, 2017 when they received a cease and desist letter from the EOIR based on the 2008 rule. The NWIRP filed a complaint for declaratory and injunctive relief with the United States District Court for the Western District of Washington. On May 17, 2017, the Court granted NWIRP's Motion for a nationwide temporary restraining Order on enforcement of 8 C.F.R. Section 1003.102(t). The hearing on the permanent injunction will be held on July 24, 2017. 

FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I. 2015)

The Rhode Island Supreme Court has held that "An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gives informed consent. See Rule 1.2(c). Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship." The holding also states, however, that an attorney's involvement in the preparation of pleadings for a self-represented litigant, known as ghostwriting, requires full disclosure. This decision was in response to a set of appeals from three attorneys who did not disclose their identities when they authored pleadings on behalf of pro se defendants in three different debt collection cases. The Supreme Court considered (1) whether Rule 11 of the Superior Court Rules of Civil Procedure applies to an attorney who neither signed a pleading nor entered his or her appearance in the case; and (2) whether the anonymous preparation of pleadings for self-represented litigants is permissible under the Rules of Professional Conduct. Ultimately, the Court found that an attorney "shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation. The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance."

In re Petition for Disciplinary Action Against A.B., a Minnesota Attorney, Panel Case No. 35121 (2014)

An attorney received an admonition for violating Minnesota Rule of Professional Conduct 8.4(d), to “engage in conduct that is prejudicial to the administration of justice,” as a result of failing to appear at a hearing. Because the client instructed the attorney not to attend, pursuant to the terms of a limited-scope representation agreement, the Court reversed the disciplinary panel’s finding.

In re Fengling Liu, 664 F.3d 367 (2011)
The Committee on Attorney Admission and Grievances recommended an attorney who provided undisclosed ghostwriting services for a pro se litigant receive a public reprimand. While the Court ultimately found the attorney had committed misconduct related to other issues, it found that the attorney’s ghostwriting did not constitute sanctionable misconduct. Since no rule or precedent governs attorney ghostwriting, the Court found that the attorney did not have an obligation to disclose participation.

Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.

Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina.

Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not "abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant."

Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official "attorney of record." The court found that it was not bound by agreements made between client and attorney and that a court may "require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct." The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal.

Walker v. American Ass’n of Prof. Eye Care Spec., 268 Va. 117, 597 S.E.2d 47 (2004)
Plaintiff engaged an attorney to investigate whether she had a potential case for negligent medical treatment, and placed money in an escrow fund with him. A few months later, the attorney informed plaintiff that he would not represent her in the case. A different law office drafted a motion for judgment. The plaintiff, acting pro se, signed the pleading herself and no attorney signed it. The original attorney arranged for it to be delivered to the clerk of the circuit court with a covering letter asking for the paper to be filed on behalf of the plaintiff. A check for the filing fee, drawn on the attorney's trust account, accompanied the letter and pleading. The attorney used money from the escrow account to retain an expert witness, and then transferred the remaining funds to other counsel who eventually represented the plaintiff. Defendants filed a motion to strike and a motion to quash, and after a hearing the trial court granted the defense motions, finding that the attorney was plaintiff's counsel of record and that the pleading had been improperly signed by the party pro se in violation of Rules 1:4 and 1A:4. The action was dismissed with prejudice, and plaintiff appealed.   The Supreme Court reversed, finding that attorney was not plaintiff’s counsel of record and that the pleading had no been improperly signed by the pro se party.

Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 580 S.E.2d 98 (2003)
Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.

Lynne v. Laufer, 359 N.J. Super. 201, 819 A.2d 471 (2003)Attorney, with matrimonial client's consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.

Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing.

Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct.

Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
In a lawsuit, plaintiff’s counsel of record requested that another firm make a "special appearance" at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true "special appearance."

Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.

Jones v. Bresset, 47 Pa. D. & C 4th 60 (2000)
Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record.

Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of "ghost writing," which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.

Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant's pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules.

Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order.

U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney's duty of candor to the court, interferes with the court's ability to supervise the litigation, and misrepresents the litigant's right to more liberal construction as a pro se litigant.

Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to ghostwrite pleadings for pro se plaintiffs abused additional leeway given to pro se filings.

Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994)
Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff's official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in litigants' misrepresentation of pro se status in violation of ethical rules.

Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
Plaintiff who consulted defendants' law firms regarding workers' compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff's representation was limited only to filing workers' compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim.

Haines v. Kerner, 404 U.S. 519, 520 (1972)
Plaintiff-inmate filed pro se complaint against prison seeking compensation for damages sustained while placed in solitary confinement. In finding plaintiff's complaint legally sufficient, Supreme Court found that pro se pleadings should be held to "less stringent standards" than those drafted by attorneys.

Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member.