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Filling Out Basic Forms Without Signing Doesn't Justify Sanctions for 'Ghostwriting'

Monday, September 16, 2013
By Joan C. Rogers

Sept. 10 --Lawyers did not engage in bankruptcy fraud, or violate ethics rules on candor and dishonesty, by filling out and filing a preprinted bankruptcy petition for a client without putting their signatures on it, the U.S. Court of Appeals for the Eleventh Circuit decided Aug. 29, vacating sanctions against the two attorneys (Torrens v. Hood (In re Hood), 11th Cir., No. 12-15925, 8/29/13).

Speaking through Judge Charles Reginald Wilson, the court disagreed with bankruptcy and district court judges that the lawyers' assistance constituted prohibited ghostwriting. Florida's ethics rule on limited-scope representation allows lawyers to provide undisclosed help with basic fill-in-the-blank forms, the court found.


Pro Se Petition Filed for Client
John W. Hood Jr. met with Adrian Reyes of the Torrens Law Firm to discuss the impending sale of his business in state-court foreclosure proceedings. The two men discussed how to postpone the sale, what impact bankruptcy would have on the foreclosure process, and the firm's fees for both foreclosure defense work and bankruptcy representation.

Shortly before the scheduled sale, Hood hired the firm to provide foreclosure defense services but allegedly not to represent him in bankruptcy. On that same date, a courier filed a pro se Chapter 13 petition on Hood's behalf in bankruptcy court in the Southern District of Florida. The petition was filed via a power of attorney that was notarized by name partner Luis Torrens.

Hood, represented by new counsel, told the bankruptcy court that he did not know about the bankruptcy petition. The firm contended, however, that a secretary prepared the petition at Hood's request, writing his oral responses into the corresponding blanks on the form.


A Chapter 13 petition stands in stark contrast to a ghostwritten pro se brief.

Judge Charles Reginald Wilson


The bankruptcy court did not credit Hood's account, but still it found that the lawyers acted fraudulently and unethically by preparing and filing Hood's supposedly pro se bankruptcy petition. The judge concluded that they violated Florida Rules of Professional Conduct 4-3.3(a)(1) (false statement of fact or law to tribunal) and 4-8.4(c) (dishonesty, fraud, deceit or misrepresentation) as well as a federal statute criminalizing fraud in bankruptcy proceedings (18 U.S.C. §157(3)).

The bankruptcy court imposed sanctions that included suspending Torrens from practice before it for six months and barring Reyes from applying for admission to practice before that court for an equivalent period of time. The district court affirmed.

The court of appeals reversed, holding that the lawyers are not subject to discipline for filling out and filing Hood's “pro se” bankruptcy petition.


'Write or Compose.'
Noting that it had never previously addressed the propriety of ghostwriting, the court zeroed in on Florida Rule 4-1.2(c) and its comment, which the district court did not cite.

That rule states that “a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.”

The comment to the rule advises that “If the lawyer assists a pro se litigant by drafting any document to be submitted to a court, the lawyer is not obligated to sign the document.” But the comment also states that “the lawyer must indicate 'Prepared with the assistance of counsel' on the document to avoid misleading the court, which otherwise might be under the impression that the person, who appears to be proceeding pro se, has received no assistance from a lawyer.”

“Rule 4-1.2(c) reflects the Florida Bar's stance on the issue of attorney ghostwriting, or more simply put, the undisclosed assistance of counsel in the drafting of a pro se document filed with the court,” Wilson said.

The court concluded that under the plain language of the rule and comment, the lawyers here did not “draft” a document for Hood. The dictionary definition of “draft” is “write or compose,” and the lawyers did not “write or compose” the pre-formatted Chapter 13 petition, it said.

On the contrary, the court said, the lawyers “recorded answers on a standard fill-in-the-blank Chapter 13 petition based on Hood's verbal responses.” Hood personally signed the petition, it pointed out.


Circuit Split
Wilson noted that federal circuits differ on the acceptance of attorney ghostwriting, with the First and Tenth Circuits requiring attorney disclosure, and the Second Circuit permitting nondisclosure in limited circumstances.

The Second Circuit, in In re Liu, 664 F.3d 367 (2d Cir. 2011), dismissed charges that a lawyer violated her duty to avoid dishonest conduct by not informing the court that she helped draft petitions that were filed by pro se litigants.

But in Ellis v. Maine, 448 F.2d 1325 (1st Cir. 1971), and Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001), the First and Tenth Circuits concluded that lawyers violate Fed. R. Civ. P. 11 if they don't sign their names to the briefs and pleadings they draft for others.

Wilson said that “a Chapter 13 petition stands in stark contrast to a ghostwritten pro se brief,” such as the briefs drafted by the undisclosed attorneys in Duran and Ellis. A legal brief is a substantive pleading that requires more much more extensive preparation than is necessary for the completion of a basic, fill-in-the-blank bankruptcy petition, he said.

The court found the bankruptcy petition at issue here was more comparable to the petitions for review filed by undisclosed counsel in Liu, which the Second Circuit described as “fairly simple and unlikely to have caused any confusion or prejudice.”

As in Liu, Wilson said, nothing indicated that the lawyers here had any fraudulent intent or thought they could get any unfair advantage through the undisclosed pro se bankruptcy petition.

The court pointed out that Hood could have personally completed the Chapter 13 petition in the exact same manner and likely obtained the same result. The petition is a publicly available form and designed in a manner that lends itself to a pro se litigant, Wilson noted.

“At bottom, we conclude that Appellants did not 'draft' a document within the scope of Rule 4-1.2(c) and did not commit fraud in violation of the Florida Rules of Professional Conduct or 18 U.S.C. §157(3),” the court said.

Jay M. Levy, Miami, and Calrie M. Marsh of Pinkert & Marsh, Coral Gables, Fla., represented Torrens, Reyes, and the Torrens firm. John A. Moffa of Moffa & Bonacquisti P.A. in Plantation, Fla., represented Hood.

 

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

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

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