‘Ghostwriting’ Lawyers Can Remain Cloaked, but Not for Tactical Advantage

‘Ghostwriting’ Lawyers Can Remain Cloaked, but Not for Tactical Advantage

Charles Toutant

A federal magistrate judge’s ruling last year that “ghostwriting” pleadings for a pro se litigant violates a lawyer’s ethical duty of candor to the court has caused an uproar loud enough to get a New Jersey Supreme Court ethics committee’s attention.

In a formal opinion meant to calm nerves, the Advisory Committee on Professional Ethics says it’s ethical, in limited circumstances, for a lawyer to draft pleadings and give other “unbundled” legal assistance to pro se parties without telling the court.

Disclosure is not required if the limited assistance is simply an effort to aid someone who is financially unable to secure an attorney or if it is part of a nonprofit program designed to provide legal assistance to people of limited means, the panel said in Opinion 713.

But full disclosure is required “where such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance.”

Disclosure is also required when it’s clear from the facts that the lawyer, not the pro se litigant, is “effectively in control of the final form and wording of the pleadings and conduct of the litigation,” the panel said.

The ghostwriting issue has been haunting since last spring when U.S. Magistrate Judge Tonianne Bongiovanni ruled, in Delso v. Trustees for the Retirement Plan for Hourly Employees of Merck & Co. Inc., that a lawyer’s anonymous help in preparing pleadings without affirmatively notifying the court was “not emblematic of the candid honesty contemplated by [Rule of Professional Conduct 3.3],” which requires candor to the tribunal.

The lawyer, Princeton, N.J., solo Richard Shapiro, instructed his client, Rosann Delso, to answer honestly if asked about his participation, and the client did so after defense counsel Randi Knepper of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, N.J., told the judge the plaintiff’s papers did not look like those of a pro se litigant. And Knepper received correspondence from Delso in an envelope bearing the return address of Shapiro’s law office. Shapiro subsequently signed on as counsel of record for Delso in the ERISA case.

Bongiovanni said the undisclosed provision of legal assistance could take unfair advantage of the looser leash courts give to unrepresented litigants. “[C]ourts often act as referees charged with ensuring a fair fight,” she noted. “This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help.”

Bongiovanni also found that undisclosed ghostwriting violates the spirit, if not the letter, of Federal Rule of Civil Procedure 11 and Local Civil Rule 11.1, which require attorneys to certify and sign their submissions to the court.

The committee said it hoped its Opinion 713 would strike a balance between “the interests of extending legal assistance to the unrepresented, preserving confidentiality and minimizing the cost of legal representation are on one side [and] candor toward the tribunal and fairness toward opposing parties on the other.”

The committee declined to address the possible applicability of Federal Rule of Civil Procedure 11 suggested by Bongiovanni, saying it has no jurisdiction over questions of federal civil procedure.

The balancing of interests drew a favorable review from John Beckerman, associate dean for academic affairs and professor of professional responsibility at Rutgers Law School-Camden. “My belief is that it is better to have limited representation, as long as it’s clearly understood what it will entail, than nothing at all,” he said.

Beckerman said lawyers limiting their representation should obtain the client’s signature on an extensive disclosure of what services will or will not be provided and the potentially negative outcomes for which the lawyer disclaims responsibility.

Bennett Wasserman, who teaches professional responsibility at Hofstra University School of Law, says Opinion 713 has some flaws that might make it clumsy to apply.

For one, it creates a different standard for compliance in state court than exists in federal court under Delso v. Merck. For another, by making disclosure unnecessary only where a litigant is unable to afford legal fees, the ruling seems to require a lawyer to conduct a financial evaluation of the prospective client’s ability to pay, says Wasserman, of Stryker, Tams & Dill in Newark.

Opinion 713 also holds limited-assistance lawyers to a different standard than transactional lawyers, who must disclose their role in preparing documents such as deeds and powers of attorney.

Finally, the presence of an off-stage lawyer prevents the adversary from conducting a conflicts check.

“Thus, while there may be benefit to one party to the litigation, the prejudicial effort on the adversary would tend to be greater,” Wasserman says.

Other states have taken diverse approaches to police such arrangements. The New York State Bar Association and the Iowa Supreme Court find them unethical per se as a fraud on the court. At the other end of the spectrum, the Los Angeles County Bar and the State Bar of Arizona find no duty to disclose, based on the need to preserve client confidentiality.

Still other states impose a limited duty of disclosure, some using imprecise terms such as “substantial” or “significant” to demarcate the duty, which the committee said were not helpful.

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