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Contract Lawyer May ‘Ghostwrite’ Pleading Without Notice to Court, Opposing Counsel

Thursday, April 24, 2014

By Samson Habte  

April 14 --There is “nothing inherently unethical” about hiring a contract lawyer or an out-of-state lawyer to “ghostwrite” a court document without disclosing that lawyers' involvement to the court or opposing counsel, the Orange County bar's ethics committee concluded in a recent ethics opinion.

California court rules authorize lawyers to help pro se litigants prepare court documents without disclosing that assistance. The opinion considers whether a California attorney may use a contract lawyer or out-of-state lawyer to “engage in ghostwriting not directly for a pro se litigant, but rather for [the California] lawyer on behalf of a client.”

The answer is yes, the committee said. Ghostwriting is a permissible form of limited scope representation that generally does not have to be revealed to opposing counsel or a court, it said.

“[T]he failure to disclose the presence of a ghostwriting lawyer would raise even fewer honesty concerns where the ghostwriting is done for another lawyer instead of for a pro se litigant, as neither the court nor opposing counsel would be under the misimpression that documents were drafted by a non-lawyer deserving of special treatment,” the committee stated.


Legal Mandate to Disclose Ghostwriting Assistance May Be Broader Than Professional Obligation

Bar groups that have addressed the propriety of undisclosed ghostwriting have often warned lawyers to consider whether sources of authority beyond the rules of professional conduct might forbid the practice. E.g., Arizona Ethics Op. 06-03, 22 Law. Man. Prof. Conduct 405 (2005) (encouraging attorneys to check whether local court rules or rules of civil procedure would demand disclosure).

“Some federal courts have held that ghostwriting violates the lawyer's certification obligations under Fed. R. Civ. Pro. 11,” the Orange County opinion notes. Accordingly, while many bar committees have deemed ghostwriting ethical, courts tend to be less forgiving of failures to disclose behind-the-scenes assistance. See Loudenslager, Giving Up the Ghost: A Proposal for Dealing With Attorney 'Ghostwriting' of Pro Se Litigants' Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearance for Such Attorneys, 92 Marq. L. Rev. 103 (2008) (“overwhelming majority of courts to address the issue have prohibited attorneys from engaging in the undisclosed ghostwriting of court documents for otherwise pro se litigants”).

Pro se litigants who receive ghostwriting assistance have routinely been ordered to disclose the identity of their helpers. E.g., Chriswell v. Big Score Entm't LLC, 2013 BL 21948, No. 1:11-cv-00861 (N.D. Ill. Jan. 28, 2013).

In other instances, lawyers have been sanctioned. See, e.g., Ayvazian v. Moore Law Grp., 2012 BL 161234, No. 2:12-cv-01506-ODW-E (C.D. Cal. June 26, 2012) (“The likelihood that the impermissible practice of ghostwriting was used in the present Complaint is but another factor in support of the Court's decision to grant sanctions under Rule 11” in amount of $2,750); Persels & Assocs. LLC v. Capital One Bank (USA), N.A., 2014 BL 40472, No. 2012-CA-001447-MR , 30 Law. Man. Prof. Conduct 163 (Ky. Ct. App. Feb. 14, 2014) (affirming sanctions order of $1 against attorneys who violated Kentucky's Rule 11 when they wrote but did not sign pleadings that they prepared for out-of-state firm's debt collection clients).

Cf. Green v. Champs-Elysees Inc., 2013 BL 103687, 29 Law. Man. Prof. Conduct 233 (Tenn. Ct. App. April 9, 2013) (lawyer's failure to reveal assistance for pro se litigant may have been unethical, but it did not constitute criminal contempt); United States v. Kimsey, 668 F.3d 691, 28 Law. Man. Prof. Conduct 89 (9th Cir. 2012) (rejecting criminal contempt charge based on improper ghostwriting).

There are indications that judicial aversion to ghostwriting is waning. E.g., In re Liu, 664 F.3d 367, 27 Law. Man. Prof. Conduct 746 (2d Cir. 2011) (dismissing charges that lawyer acted dishonestly by failing to disclose assistance).

See also “Federal Courts Play Catch Up on Ghostwriting as States Cheer 'Unbundled' Legal Services,” 28 Law. Man. Prof. Conduct 42.


Discernible Trend

The opinion is the latest to reject a previously dominant view among ethics committees that ghostwriting is an ethically impermissible or questionable practice. The trend accelerated after 2007, when the ABA's ethics committee reversed its position that lawyers must disclose their assistance to pro se litigants. ABA Formal Ethics Op. 07-446, 23 Law. Man. Prof. Conduct 352 (2007).

Hostility to ghostwriting was predicated on concerns that it is an inherently deceptive practice that undermines a court's ability to supervise attorneys, contravenes lawyers' duties of candor and honesty and inappropriately allows purportedly unrepresented litigants to take advantage of the bench's tendency to overlook defects in pro se filings.

“Many jurisdictions agree with the ABA that such a practice is not inherently misleading,” the Orange County opinion notes, “but some require notification to the court, and others require such notification only if the contribution is substantial.” See also Pennsylvania/Philadelphia Joint Formal Ethics Op. 2011-100, 28 Law. Man. Prof. Conduct 35 (2011) (charting jurisdiction-by-jurisdiction approaches to ghostwriting).

According to one law review article, 24 states had addressed the practice as of 2010. Ten of them permit the practice without requiring lawyers to disclose their assistance, but 10 others expressly forbid ghostwriting. Robbins, Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts, 23 Geo. J. Legal Ethics 271, 286-288 (2010).

Caveats

The Orange County committee's endorsement of undisclosed ghostwriting was not unqualified. The opinion includes several caveats:

The contract lawyer's involvement must be disclosed to to the court if the client is seeking to recover attorneys' fees incurred for drafting a document.

The committee premised this proviso on Rule 3.37 of the California Rules of Court, which recognizes ghostwriting as a permissible form of limited scope representation.

If the client or counsel of record does not want to disclose the outside help, the client should be advised that he “will not be able to obtain an award of attorneys' fees” for contract lawyer's work, the committee said.

The other lawyer's role must be disclosed to the client if it constitutes a “significant development” in the representation.

This caveat, the panel said, is rooted in Rule 3-500 of the California Rules of Professional Conduct, which states that clients must be kept “reasonably informed about significant developments” in their case. Guidance on whether retention of outside help constitutes a “significant development” can be found in California Formal Ethics Op. 2004-165, 20 Law. Man. Prof. Conduct 359, it said.

Don't lose sight of the duty of competence. The committee also noted that counsel of record's duty of competence “includes the duty to supervise subordinate lawyers.” An outside attorney retained for a ghostwriting assignment is included in that definition, it said.

UPL concerns. The opinion cautions that “to the extent the contract lawyer is not admitted to practice in California, both lawyers must guard against the potential unauthorized practice of law.”

Determinations as to whether counsel of record aided an out-of-state lawyer's unauthorized practice “will depend on the specific factual situation and the scope of [the ghostwriting lawyer's] involvement,” the committee said.

“The analysis,” it continued, “will consider the significance of the contact with the client and the activity in the state, which may occur in person or remotely through the use of technology, as discussed in [Birbrower, Montalbano, Condon & Frank P.C. v. Superior Court, 949 P.2d 1 (Cal. 1998)].”

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com


Full text at http://www.ocbar.org/Portals/0/pdf/OCBA201401.pdf.

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