Attorneys Permitted to Ghostwrite Pleadings for Pro Se Litigants

Lawyers are permitted to ghostwrite pleadings for otherwise self-represented litigants and need not disclose that assistance to opposing counsel or the court.

An ethics opinion from the Mississippi Bar Association (MBA) reflects changing attitudes towards the practice of ghostwriting and may increase access to justice in underserved communities, say ABA Section of Litigation leaders.

Lawyers May Ghostwrite Documents for Pro SeLitigants

When a pro selitigant seeks drafting assistance from an attorney, issues may arise regarding the ethics of the engagement. The MBA’s opinion concluded that under the 2011 amendments to the Comments to ABA Model Rule of Professional Conduct 1.2, an attorney may provide limited scope representation on a client’s behalf, or what is commonly known as unbundled legal services. This type of representation can include drafting a document for the client.

However, the attorney must explain to the client the limited scope of the representation and inform the client of all ethical obligations, including the obligation of attorney confidentiality under Model Rule 1.6. Moreover, under Model Rule 1.4, the attorney must ensure that the client understands what it means to limit the scope of representation and the potential consequences. For instance, if a lawyer drafts a motion but does not appear at the hearing, the lawyer must advise the pro selitigant that he or she will have to argue the motion and answer questions from the court.

The MBA also considered whether the ghostwriting lawyer is required to disclose either his or her name, or that the document was prepared by a lawyer. The MBA noted that some federal courts have found a lawyer’s failure to disclose this information may be dishonest to the court or misleading in violation of Model Rule 8.4(c). In that scenario, the client might receive the more lenient treatment afforded to pro selitigants, with the court unaware of the extent of the representation provided.

The MBA rejected this concern, reasoning that a court presented with a document drafted by an attorney but argued by a pro selitigant would most likely be aware of the nature of the attorney’s involvement, and if the court was uncertain, it could always inquire of the litigant. But an attorney should not use the limited scope representation to provide ongoing assistance without disclosure, which would violate Model Rule 8.4(c). The MBA also noted that the Comments to Model Rule 1.2 indicate a strong public policy in favor of attorneys providing limited representation.

Treatment of Attorney Ghostwriting Differs by Jurisdiction

Several states have applauded the practice of legal ghostwriting, identifying it as an important means of increasing access to justice. For example, Alabama, Arizona, Maine, and North Carolina do not require disclosure of legal ghostwriting. Other states, such as Florida, Nevada, and West Virginia, allow this type of unbundled representation, but require disclosure to the court and opposing counsel.

At least three federal appellate courts have considered whether attorneys must disclose ghostwriting assistance. The First and Tenth Circuits mandate disclosure, while the Second Circuit permits the lawyer to remain undisclosed. The ABA addressed the question in 2007, issuing a formal opinion rejecting the notion that failing to disclose a lawyer’s participation in ghostwriting submissions for clients was “dishonest” under Model Rule 8.4(c). The ABA opined that if a lawyer is involved in this type of drafting, it will be evident to the court.

Leveling the Field for Pro SeLitigants

The ability to ghostwrite pleadings without disclosure has many potential implications, including providing access to justice for underserved communities. “This trend may help empower racial, ethnic, and LGBTQ minority communities that may not otherwise have access to legal services,” says Janice V. Arellano, Bridgewater, NJ, cochair of the Section of Litigation’s Minority Trial Lawyer Committee. Ghostwriting might also be an option for immigrants seeking legal assistance, who sometimes fall victim to “notarios,” individuals who present themselves as attorneys but are not, Arellano adds. “Often, immigrant populations don’t feel they have access to justice or appropriate legal services. If licensed attorneys can perform ghostwriting for these clients, it might be a great option,” she says.

Changes in funding for legal services may accelerate the frequency of attorney ghostwriting. “The benefits of this type of representation outweigh the risks. Legal ghostwriting can put litigants without resources on equal footing with the other side,” observes Michelle Molinaro Burke, Morristown, NJ, cochair of the Section’s Young Advocates Committee. Burke sees the Mississippi opinion as part of a trend. “As the need for legal services increases, and the funding for these services decreases, we will see more of this type of ghostwriting,” she notes.

A ghostwriting attorney should ensure clarity regarding the scope of services he or she is agreeing to provide to a pro seclient. Burke cautions that lawyers should protect themselves by “putting the terms of the limited engagement in writing and following through with the scope of that plan so that there is no dispute later on.” Arellano agrees. “At the very beginning,” she suggests, “make sure the client understands the scope of the representation.”