February 03, 2012 Top Story

Second Circuit Lifts Sanction on Ghostwriting Petition

Should a court sanction an attorney for helping pro se litigants draft and file petitions for review?

Lisa R. Hasday

Should a court sanction an attorney for helping pro se litigants draft and file petitions for review—the administrative equivalent of notices of appeal—without disclosing her involvement to the court? The U.S. Court of Appeals for the Second Circuit recently decided that such an attorney should not be sanctioned. The Second Circuit left unanswered, however, the question of whether attorneys may “ghostwrite” more substantive documents.

A Narrow Opinion

In a per curiam decision, In re Fengling Liu, the Second Circuit noted that “[t]he petitions for review now at issue were fairly simple.” The petitions were “essentially one paragraph, largely non-substantive documents,” according to the court’s Committee on Admissions and Grievances, which nonetheless concluded that the attorney’s undisclosed ghostwriting violated her duty of candor.

Pursuant to Second Circuit orders, the committee had conducted an investigation, held a hearing, and issued a report. In addition to its finding on the ghostwriting issue, the committee also found that the attorney had filed claims that were not administratively exhausted or that were in the wrong venue; had negligently defaulted on cases; and had failed in her obligations to supervise associates, keep her clients apprised of their cases, and properly terminate her representation. The committee recommended that the attorney be reprimanded publicly and required to submit status reports to the committee.

Reversing the committee’s decision on the ghostwriting issue while adopting its other findings, the Second Circuit held that the attorney could not have known of any obligation to disclose her participation because no rule prohibited ghostwriting. The court further concluded that no evidence suggested that the attorney acted in bad faith, pointing instead to her testimony that she wanted to help the pro se litigants preserve their right to appeal.

“The Second Circuit opinion is not necessarily reassuring,” warns Lauren Waller Smith, McLean, VA, cochair of the ABA Section of Litigation’s Legal Services Delivery Committee. Although the court decided not to sanction the attorney for ghostwriting, Smith believes the decision might actually have a chilling effect on the practice, at least with respect to more substantive pleadings. The U.S. Courts of Appeals for the First and Tenth Circuits have already held that lawyers may not ghostwrite an appellate brief.

Support for Ghostwriting

There appears to be support among practitioners—even those who do not personally ghostwrite—for broader protection. Smith says the quality of legal services representation would “improve enormously” if attorneys felt safe to ghostwrite pleadings—particularly answers. “You can’t realistically enter your appearance and litigate every single case,” she explains. “As a practical matter, many legal services attorneys talk through with the person how to do the pleading, stopping shy of ghostwriting it because they fear that ghostwriting it would be an ethical violation.”

In the immigration law context, which was at issue in In re Fengling Liu, broader protection for attorney ghostwriting might discourage individuals from seeking help from so-called notarios, non-attorneys who often do more harm than good, suggests Parisa K. Karaahmet, New York City, cochair of the Section of Litigation’s Immigration Litigation Committee. “I’ve seen instances where notarios, or people who hold themselves out as immigration specialists, have helped people complete forms that have ultimately had a detrimental impact on them,” she says.

Concerns with Ghostwriting

One reason that some courts have voiced against ghostwriting is that it unfairly affords litigants the benefit of the liberal construction rule for pro sepleadings when attorneys have actually done the writing. The Second Circuit acknowledged this, noting ABA Formal Opinion 07-446’s conclusion that the concern was unwarranted because a well-written pro se pleading would not be given liberal construction. “Even if your pleadings get some leniency, if you’re a pro selitigant going against a lawyer,you’re still fighting an uphill battle,” adds Smith.

Another argument is that ghostwriting is a form of dishonesty. Here, the Second Circuit again referenced the ABA opinion, which concluded that ghostwriters are not dishonest within the meaning of ABA Model Rule of Professional Conduct 8.4(c)—as long as their pleadings do not state that they were prepared without attorney assistance.

“I don’t think the Second Circuit is suggesting that transparency and candor to the court aren’t important values,” says Karaahmet, “but, in the absence of any rule or statute that provides otherwise, there doesn’t appear to be a driving public policy need for attorneys to reveal themselves in these circumstances.”

A final concern has been that ghostwriting violates Federal Rule of Civil Procedure 11, which requires that pleadings “be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented.” The Second Circuit found that Rule 11 applies only to district court proceedings and, in any event, requires the signature of an “attorney of record,” not a drafting attorney.

Practical Considerations for Potential Ghostwriters

Attorneys who choose to ghostwrite despite the Second Circuit’s narrow holding should bear in mind some practical considerations. Assess potential conflicts of interest with the client, advises Gregory R. Hanthorn, Atlanta, cochair of the Section’s Ethics & Professionalism Committee. “Declining a fee, or performing a ‘favor,’ does not take the ethical rules out of the equation, including in many jurisdictions a need to express in a written engagement letter the limitations upon what the attorney has agreed to do,” he says.

Finally, further guidance from the Second Circuit may be coming soon. The last sentence in the ghostwriting section of its opinion announces that “in light of the importance of the ghostwriting issue, and the fact that the effect of ghostwriting on disqualification issues is not discussed in the ethics opinions described in the text, we recommend to the court that it consider the amendment of its rules to resolve the matter.”

Lisa R. Hasday is an associate editor for Litigation News.

Keywords: second circuit, ghostwriting, sanction

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