In Couch v. Jabe, the district court wrote that the ghostwriting lawyers were “saved from violating an ethical duty of candor” by a footnote in the pro se plaintiff’s motion. In that footnote, the pro se plaintiff disclosed that he had asked counsel for a party in a related case to draft the motion at issue for him. He claimed to have later revised the motion himself. The district court noted that “ghostwriting” motions for a pro se plaintiff could lead to potential Rule 11 sanctions for the counsel involved and cautioned that additional allegations of ghostwriting would be “appropriately adjudicated.”
Diverging Views from the Bench and Bar
“There’s a tension between how some of the courts, including the federal district court in Couch, see ‘ghostwriting’ and how bar associations see it,” says Bruce A. Green, New York, member of the ABA Standing Committee on Ethics and Professional Responsibility.
“From the organized bar’s perspective, parties who cannot afford a lawyer to represent them from the beginning to the end of a proceeding may benefit from having some assistance from a lawyer rather than none at all,” says Green.
“Bar associations have talked about ‘unbundled’ legal services in a positive way to refer to the concept that lawyers can provide meaningful assistance with respect to limited aspects of the legal dispute—for example, by providing advice, or by drafting or reviewing pleadings,” explains Green.
Recognizing the trend toward unbundling legal services and the need to encourage lawyers to provide limited representations of litigants with limited means, the West Virginia Lawyer Disciplinary Board recently issued a draft ethics opinion for its members on the subject. While the board found that “ghostwriting as a form of undisclosed representation is permissible under its Rules of Professional Conduct,” it also cautioned that “the attorney must disclose his or her identity when preparing pleadings and other documents filed with a tribunal.” The board also advised attorneys to make sure the client is “fully aware and consents” to the “specific limitations” of the representation and the “possible ramifications.”
“The Lawyer Disciplinary Board properly reminds attorneys that they are obliged under Rule 1.2 [of the Model Rules of Professional Conduct] to secure the client’s informed consent to a material limitation in the scope of the representation and that it is wise to clearly document the nature of the service to be provided to avoid any client misunderstanding as to the lawyer’s limited role,” says Thomas G. Wilkinson Jr., Philadelphia, cochair of the Conflicts of Interest Subcommittee of the ABA Section of Litigation’s Ethics & Professionalism Committee.
“While a legitimate distinction can be made that courts will sometimes treat pro se litigants differently from those represented by counsel,” Wilkinson says, “opinions in this area should recognize that these are clients who are unable to afford a full fledged representation.” These cases “often involve volunteer lawyers who would not undertake the same representation if it meant entering an appearance and potentially being called upon to handle all aspects of the matter through termination of the case without being compensated for it.”
Many state courts “have been experimenting and encouraging lawyers, often on a pro bono basis, to give some help to parties, such as to tenants in housing court or parties seeking a divorce in family court, who would otherwise be entirely on their own,” notes Lawrence J. Fox, Philadelphia, former chair of the Section of Litigation and current delegate of the Section to the ABA House of Delegates.
The Need for Clarity
“The most worrisome aspect of this issue is its inconsistent treatment,” says Andrew S. Pollis, Cleveland, cochair of the Section’s Ethics and Professionalism Committee. “The states are split, and the ABA has itself switched gears over the years,” Pollis notes, leaving “practitioners with a need for clarity on their ethical obligations.”
“There are a number of major questions that remain unclear,” Fox agrees. He asks: “Is the lawyer participating in a misrepresentation to the court by not appearing but preparing documents filed in court?” “Is this person a real client and therefore the lawyer owes the person all of the duties under the rules and the common law and is subject to discipline and malpractice liability for violations or work that falls below the standard of care?”
Based upon such questions, “crafting an apposite rule can only be a good thing,” Pollis says.
A Disproportionate Impact?
However, “a rule prohibiting ghostwriting would have a disproportionate impact on low-income litigants who cannot afford a lawyer,” Pollis cautions. “Sometimes ghost-writing is the only way to protect these litigants from an imminent expiration of the statute of limitations or an imminent default judgment,” says Pollis.
“Unless courts are willing to permit attorneys to enter limited appearances and then withdraw immediately, a ghostwritten pleading is sometimes the only realistic way to protect a client’s rights,” says Pollis
“Lawyers have to know the expectations of the particular tribunal before they draft papers in cases where they will not appear,” says Green. “And the bar needs to work with the courts to develop understandings that meet the needs of both the courts and low-income parties,” concludes Green.
Effie D. Silva is an associate editor for Litigation News.