NY JUDGE AWARDS $155,092.00 TO Pro Se HOMEOWNER for Wells Fargo Trespass

By JEFFREY ARLEN SPINNER, J.S.C, New York jfm33137@aol.com

NY JUDGE AWARDS $155,092.00 TO HOMEOWNER

Wells Fargo v Tyson

Decided on March 5, 2010

Supreme Court, Suffolk County

Wells Fargo, Plaintiff

against

Steven E. Tyson, SUSAN L. TYSON, LEITH ANN TYSON, LINDSAY TYSON and KYRA TYSON, Defendants

2007-28042

Richard Femano, Esq.

Fein Such & Crane L.L.P.

Attorneys for Plaintiff

747 Chestnut Ridge Road, Suite 200

Chestnut Ridge, New York 10977

Steven E. Tyson

Defendant Pro Se

2064 Hendricks Avenue

Bellmore, New York 11710

and

3 Danville Court

Greenlawn, New York 11740

Jeffrey Arlen Spinner, J.

On September 7, 2007 Plaintiff commenced this action claiming foreclosure of a mortgage by filing its Notice of Pendency and Summons and Complaint with the Clerk of Suffolk County. The mortgage at issue was originally given in favor of New Century Mortgage Corporation, Plaintiff’s assignor. Said mortgage was given to secure a note and constitutes a first lien upon premises known as 3 Danville Court, Greenlawn, Town of Huntington, New York. On November 30, 2007, Plaintiff filed an application with this Court seeking the appointment of a referee pursuant to RPAPL § 1321 but withdrew that application on December 5, 2007. Subsequently and on September 18, 2009, Plaintiff filed a second application for the same relief which was granted by Order of this Court dated November 4, 2009.

On January 14, 2010, upon the written request of Defendant STEVEN TYSON, this Court convened a conference in order to address certain serious issues which had arisen with respect to the property under foreclosure. Defendant took the time to appear in person while Plaintiff dispatched a per diem attorney who had absolutely no knowledge of the matter inasmuch as she was not regular counsel, was not provided with any information and hence no meaningful progress could occur. The Court was thereupon compelled to continue the conference to February 24, 2010, at which time the Defendant again appeared in person, on this occasion, with counsel of record for the Plaintiff, appearing as instructed by the Court.

The issue that brings these parties before the Court at this time concerns the entry, without permission, into Defendant’s dwelling house, by agents dispatched expressly for that purpose by Plaintiff. Plaintiff vociferously [*2]asserts that it has the absolute and unfettered right, under the express terms of the mortgage, to enter the premises at any time, for purposes of inspection and protection of its security interest and that it is free to do so without having to obtain Defendant’s consent for the same. Defendant counters that Plaintiff has wrongfully and without justification entered the dwelling on at least two separate occasions, causing damage to the premises and resulting in the loss of various items of personalty.

The following facts are not in dispute. Defendant and his wife are the owners, in fee simple absolute, of the premises known as 3 Danville Court, Greenlawn, New York, which are subject to a first lien in favor of Plaintiff. Plaintiff has commenced an action to foreclose that lien, but there has been no devolution of title. Defendant’s personal financial situation is such that he can no longer maintain the high cost of utility service, resulting in the voluntary discontinuance of same. Defendant has previously winterized the plumbing and heating systems in the dwelling, has secured the building, maintains the exterior of the premises and retains virtually all of his personalty in the home including furniture, clothing and foodstuffs. Defendant has, previous to any entry on the premises herein, notified Plaintiff of the discontinuance of utility service and the winterization and securing of the dwelling. Defendant, although he is now residing elsewhere, has not abandoned the property, has not evinced any intent to abandon it and he visits the premises at least once weekly and sometimes with greater frequency. In addition, Defendant has arranged with a neighbor to keep a watchful eye on the property in his absence.

It is also undisputed that without any notice to Defendant, on or about November 13, 2009, Plaintiff dispatched an agent to the premises who thereupon changed the locks, thus barring Defendant from access to his property. When Defendant contacted Plaintiff relative to his wrongful ouster from the dwelling and demanded access, Plaintiff’s representative denied any knowledge of the entry and directed him to contact Fein Such & Crane, their counsel of record. Upon contacting them, Defendant was advised by someone named Matt that the entry into the home was standard procedure but a new key to the premises would be provided to him by Plaintiff, and Defendant expressly directed that they remain away from the property. In spite of Defendant’s requests Plaintiff caused the property to be entered yet again in late December or early January, at which time Defendant, having been telephoned by his neighbor, actually confronted these persons and urged them to immediately leave the premises. Defendant was able to discover that these persons obtained access by use of a key identical to the one that was previously provided by Plaintiff to Defendant . Defendant then secured the premises only to return later that day to find his garage open and the loss of various items of personal property, including an 8 kilowatt portable generator, a 14 foot aluminum sectional extension ladder, an aluminum step ladder, a convertible hand truck, an AquaBot pool cleaning device and other items, valued, according to documentation supplied by Defendant, at $ 4,892.00. Defendant thereafter contacted the Suffolk County Police Department and made a full report, which was docketed under central complaint no. 10-85647.

It is at this point that the accounts begin to diverge. Defendant offered sworn testimony as follows: he arrived at the premises on November 17, 2009 to discover that he had been “locked out,” so to speak; upon communicating with Plaintiff, he was redirected to their attorney who informed him that the property was “inspected and secured” due to its abandoned state; they dispatched a new key to him whereupon he discovered that his door lock cylinders had been drilled out; Plaintiff advised Defendant that he was in possession of the premises, that he had not abandoned the dwelling, that it was replete with his furniture and personal effects and he further instructed them to remain away from the property and to refrain from any entry into the dwelling; according to Defendant, Plaintiff’s representative apologized and stated that they would not enter the premises.

On February 24, 2010, Plaintiff produced a witness, one John Denza, who testified under oath, as follows: at the express direction of Plaintiff, his company (a private property inspection and preservation firm) caused the mortgaged premises to be inspected on November 3, 2009, allegedly found the front door to be wide open and the premises completely unsecured and so notified Plaintiff; Plaintiff faxed his company a work order on November 6, 2009 directing that the locks be changed and the dwelling be secured and winterized and further, that on November 13, 2009 his company caused the locks to be changed; he flatly denied that the locks had been drilled or otherwise forcibly removed, instead asserting that the front door to the premises was ajar and the existing lock cylinders were simply unscrewed and set aside. It was only after a rather probing examination by the Court that Mr. Denza conceded that he had no actual knowledge as to the matters about which he testified since he never visited the premises, relying instead upon another individual to whom he had delegated all responsibility. Placing things into simpler terms, the totality of his testimony consisted of nothing more than self-serving statements constituting [*3]inadmissible hearsay not subject to any exception, Latimer v. Burrows 163 NY 7, 57 NE 95 (1900), People v. Huertas 75 NY2d 487, 554 NYS2d 444 (1990). No testimony or evidence from a party with actual knowledge was proffered by Plaintiff.

The law is clear that it is both the province and the obligation of the trial court to assess and determine all matters of credibility, Matter of Liccione v. Miuchael A. 65 NY2d 826, 482 NE2d 917, 493 NYS2d 121 (1985), Morgan v. McCaffrey 14 AD3d 670, 789 NYS2d 274 (2nd Dept. 2005). It is for the trial court to apply and resolve issues of witness credibility. Here, Plaintiff has produced a witness who has absolutely no firsthand knowledge of the controversy, hence his testimony is devoid of all probative value and cannot be the subject of any serious consideration. On the other hand, upon assessment of Defendant’s demeanor and comportment, the Court is convinced that he is telling the truth and he is worthy of belief.

At the February 24, 2010 conference, Plaintiff’s counsel doggedly insisted that Plaintiff was wholly justified in taking the actions complained of by Defendant (entry upon the property), asserting that it had done so in accordance with the rights conferred upon it under the terms of the mortgage and therefore Plaintiff bore no liability whatsoever to Defendant. At no time was there any denial that Plaintiff had caused Defendant’s property to be entered on more than one occasion, counsel simply asserting that Plaintiff had the right to enter into and protect the property as it saw fit.

Though not specifically enumerated by counsel, the Court presumes that Plaintiff derives its claimed rights from Paragraph 7(b) of the mortgage herein, which states, in pertinent part, that “Lender, and others authorized by Lender may enter on and inspect the Property. They will do so in a reasonable manner and at reasonable times. If it has a reasonable purpose, Lender may inspect the inside of the home or other improvements on the Property. Before or at the time an inspection is made, Lender will give me notice stating a reasonable purpose for such interior inspection.” Though this contractual provision clearly requires some kind of notice to Defendant, there is no indication that any notice at all was provided to Defendant. Indeed Plaintiff does not even advance any claim that it has complied with this section but instead baldly asserts, through counsel and not through any person with actual knowledge, that it has what appears to be an unfettered right to enter the premises at any time.

Presumably, counsel for Plaintiff further relies upon the express provisions of Paragraph 9 of the mortgage which states, in pertinent part, that “If…I have abandoned the Property, then Lender may do and pay for whatever is reasonable and appropriate to protect Lender’s interest in the Property…Lender’s actions may include but are not limited to: (a) protecting and/or assessing the value of the Property; (b) securing and/or repairing the Property;…Lender can also enter the Property to make repairs, change locks…and take any other action to secure the Property.” This section presupposes that Defendant has abandoned the property. It logically follows then that abandonment would be a strict pre-requisite to Plaintiff’s right of entry upon and within the premises. Here, Defendant’s testimony plainly reveals that he has not abandoned the property in any manner whatsoever and therefore the required condition precedent to Plaintiff’s entry does not exist.

A fair reading of the contractual provisions set forth, supra makes it abundantly clear that any and all actions taken by Plaintiff must be reasonable and, where entry into improvements on the property s contemplated, then the same must be accomplished only upon notice to the other party. It is apparent that Plaintiff has breached its own contract by its failure to give notice and further, that its actions are not reasonable under the circumstances presented. This is especially true herein since the condition precedent to Plaintiff’s right of entry has not occurred.

Since the mortgage at issue is an instrument promulgated by the lender to the borrower and since the operative and binding terms thereof are not negotiable by the borrower, such an instrument is considered to be a contract of adhesion which is typically construed against the drafter thereof, Belt Painting Corp. v. TIG Insurance Company 100 NY2d 377 (2000). Under the circumstances presented to this Court, it is appropriate and fair that the terms of the instrument be construed in favor of Defendant.

In the matter before the Court, it is apparent that Plaintiff has perpetrated a trespass against the real property of Defendant, which is actionable and subjects Plaintiff to liability for damages. Distilled to its very essence, trespass is characterized by one’s intentional entry, with neither permission nor legal justification, upon the real property of another, Woodhull v. Town of Riverhead 46 AD3d 802, 849 NYS2d 79 (2nd Dept. 2007). The injury arising [*4]therefrom afflicts the owner’s right of exclusive possession of the property, Steinfeld v. Morris 258 AD 228, 16 NYS2d 155 (1st Dept. 1939), Kaplan v. Incorporated Village of Lynbrook 12 AD3d 410, 784 NYS2d 586 (2nd Dept. 2004). The elements of a claim for trespass are intent coupled with the entry upon the land that is in possession of another. In order for trespass to lie, general intent is legally insufficient. Instead, there must be a specific intent, either to enter the land or to engage in some act whereby it is substantially certain that such entry onto the land will result therefrom, Phillips v. Sun Oil Co. 307 NY 328, 121 NE2d 249 (1954). The intent need not be illegal or unlawful, MacDonald v. Parama Inc. 15 AD2d 797, 224 NYS2d 854 (2nd Dept. 1962) but even one who enters the land upon the erroneous belief that he has the right to enter thereon will be held liable in trespass, Burger v. Singh 28 AD3d 695, 816 NYS2d 478 (2nd Dept. 2006). Trespass will lie against a party if entry upon the land was perpetrated by a third party, such as an independent contractor or other party, at the direction of the party to be charged, Gracey v. Van Kamp 299 AD2d 837, 750 NYS2d 400 (4th Dept. 2002). It follows then, both logically and legally, that the injured party must have been in possession, whether actual or constructive, at the time that the alleged wrongful entry occurred, Cirillo v. Wyker 51 AD2d 758, 379 NYS2d 505 (2nd Dept. 1976). In the matter that is presently sub judice, it is clear that a trespass has occurred on at least two separate occasions. It is apparent to the Court that this trespass was perpetrated against the property of Defendant and was done at the special instance and request and upon the affirmative directive of Plaintiff. Since the Court finds that liability for trespass lies against Plaintiff and in favor of Defendant, the Court must now move forward to consider and to determine the damages, if any, that should properly be awarded to Defendant.

Actual damages may be recovered against the trespasser-tortfeasor though they are not a mandatory component of the claim, Amodeo v. Town of Marlborough 307 AD2d 507, 763 NYS2d 132 (3rd Dept. 2003). The rule applicable herein is that where the invasion is de minimis or the actual amount of damages is not capable of calculation nor is it readily quantifiable, then an award of nominal damages will be appropriate under the circumstances, Town of Guilderland v. Swanson 29 AD2d 717, 286 NYS2d 425 (3rd Dept. 1968), aff’d 24 NY2d 802, 249 NE2d 467, 301 NYS2d 622 (1969). Indeed, the damages that are recoverable by the injured party include those resulting from each and every consequence of the trespass, inclusive of both damage to property and injury to the person but only to the extent that such damages arose as a direct result of the wrongful intrusion by the trespasser-tortfeasor, Vandenburgh v. Truax 4 Denio 464, 1847 LEXIS 157 (Supreme Court Of Judicature Of New York, 1847).

Damages for injury to real property are typically calculated and awarded as the lesser amount of the decline in fair market value versus the cost of restoring the property to its state before the trespass, in other words, the injured party is entitled to recover the amount by which the property has been devalued, Hartshorn v. Chaddock 135 NY 116, 31 NE 997 (1892) Slavin v. State 152 NY 145, 46 NE 321 (1897). In this matter, there is no evidence that the value of the property has been diminished or otherwise adversely affected by the trespass, hence this method of calculation of damages is inapplicable.

In instances where the conduct complained of is willful, wanton or egregious, the Court is vested with the power to award exemplary damages. Exemplary damages may lie in a situation where it is necessary not only to effectuate punishment but also to deter the offending party from engaging in such conduct in the future. Such an award may also be made to address, as enunciated by the Court of Appeals in Home Insurance Co. v. American Home Products Corp. 75 NY2d 196, 550 NE2d 930, 551 NYS2d 481 (1989) “…gross misbehavior for the good of the public…on the ground of public policy”. Indeed, exemplary damages are intended to have a deterrent effect upon conduct which is unconscionable, egregious, deliberate and inequitable, I.H.P. Corp. v. 210 Central Park South Corp. 12 NY2d 329, 189 NE2d 812, 239 NYS2d 547 (1963).

Since an action to foreclose a mortgage is a suit in equity, Jamaica Savings Bank v. M.S. Investing Co. 274 NY 215, 8 NE2d 493 (1937), all of the rules of equity are fully applicable to the proceeding, including those regarding punitive or exemplary damages, I.H.P. Corp. v. 210 Central Park South Corp. , supra . Indeed this Court is persuaded that Judge Benjamin Cardozo was most assuredly correct in stating that “The whole body of principles, whether of law or of equity, bearing on the case, becomes the reservoir drawn upon by the court in enlightening its judgment” Susquehannah Steamship Co. Inc. v. A.O. Andersen & Co. Inc. 239 NY 289 at 294 (1925). In a suit in equity, the Court is empowered with jurisdiction to do that which ought to be done. While the Court notes that the formal distinctions between an action at law and a suit in equity have long since been abolished in New York (see CPLR 103, Field Code of 1848 §§ 2, 3, 4, 69), the Supreme Court is nevertheless vested with equity jurisdiction and [*5]the distinct rules governing equity are still very much applicable, Carroll v. Bullock 207 NY 567, 101 NE 438 (1913). Therefore, in a matter where the conduct of the party to be charged is either willful, wanton or reckless, the Court may invoke the principles of equity so as to make an award of exemplary damages.

Here, the Court is constrained to find that the conduct of Plaintiff in this matter was both willful and wanton, as evidenced by not one but two unauthorized entries into Defendant’s dwelling, occurring in complete derogation of Defendant’s right of possession. This conduct becomes even more glaring when consideration is given to the fact that Defendant affirmatively notified Plaintiff that he had secured the property and that it was not abandoned and still contained his personal property. Even so, Plaintiff maintains that it has entered the property under a color of right, which turns out to be illusory under the circumstances. In spite of these declarations, Plaintiff willfully took it upon itself to enter the property on more than one occasion, doing so unreasonably and without notice, in direct contravention of the terms of its mortgage promulgated to Defendant by its assignor. This is even more distressing when it is considered that Plaintiff breaches its obligations to Defendant under the mortgage, running roughshod over Defendant’s rights with a specious claim that it is acting to protect its rights and the property. In short, the conduct of Plaintiff was nothing short of oppressive and would best be described as heavy handed and egregious, to say the very least. Certainly, the trespass was willful and calculated and was not accidental in any way and the Court finds that Plaintiff did not act in good faith. Under these circumstances, an award of both actual and exemplary damages is necessary and appropriate in order to properly compensate Defendant for the losses he has sustained by way of Plaintiff’s shockingly wrongful conduct as well as to serve as an appropriate deterrent to any future outrageous, improper and unlawful deeds.

The Court finds the appropriate measure of damages for the trespass to Defendant’s possessory interest in the property to be in the amount of $ 200.00. The Court further finds that Defendant is entitled to recover $ 4,892.00 representing the value of the personalty lost as a direct result of Plaintiff’s actions in trespass. Finally, the Court finds that Defendant is entitled to recover exemplary damages from Plaintiff in the amount of $ 150,000.00.

For all of the foregoing reasons, it is, therefore

ORDERED, ADJUDGED and DECREED that the Defendant STEVEN E. TYSON residing at 3 Danville Court, Greenlawn, New York 11740 recover judgment against the Plaintiff WELLS FARGO BANK N.A. with an office located at 3476 Stateview Boulevard, Fort Mill, South Carolina 29715 the sum of $ 200.00 for damages resulting from trespass, together with the sum of $ 4,892.00 for actual loss, together with the sum of $ 150,000.00 for exemplary damages, for a total recovery of $ 155,092.00 and that the Defendant have execution therefor. The Clerk of Suffolk County is directed to enter judgment accordingly.

This shall constitute the Decision, Judgment and Order of this Court.

Dated: March 5, 2010

Riverhead, New York

E N T E R:

______________________________________

JEFFREY ARLEN SPINNER, J.S.C

Foreclosure Defense: More Pro Se Ingenuity

ny
nysmenu@yahoo.com

I am NOT a lawyer and I am NOT giving legal advice, I am telling you what worked for me.

Since most of the attorneys will not admit to helping their client commit fraud or of being in a joint venture, which, they are. If you ask them for a retainer contract, they will send you a signed affidavit telling you what a “law firm should get paid by a plaintiff” but not a RETAINER.

To get them to admit anything you want, send them a TACIT PROCURATION letter. Ask questions and give them 10 days to answer and when they refuse to answer, follow it up with a TACIT PROCURATION TO CURE, meaning now send them the same questionnaire back but only this time with your answers and ask them to object to answers and also give them 10 days to respond. They will not.

The same thing applies if they send you a copy of the note and if you don’t object, the court sees it as an admission on your part. Use their rules and their game to win.

In your answer specify to them that you are not interested in affidavits, you want solid proof. Affidavits are nothing more than junk. If you get an assignment of mortgage is also junk. The assignment never has any evidence of it being real, so question it, ask them to produce the signatory. Deny, deny, deny. If not sure about an answer, DENY it.

You need to save on your desktops the Civil Rules of Procedures in your county, state. When in doubt of any allegation, Google it. You will get enough information on how to proceed. These tactics worked for me. If after you send in your answer you get back from the attorneys a “Summary Judgment” motion, you are winning. They know they have no standing to proceed to therefore, they are asking the court to disregard your answer and rule in their favor. If that happens, object to the motion and at the same time file your motion for “Summary Judgment”.

You must object to everything coming from them. Some lawyers will send you a “Motion to Strike” but if you look closely the motion will talk about a complete different subject than your summons. They want you to set aside since it doesn’t pertain to you. BE careful, it might have a copy of a note attached and if you don’t OBJECT, the note is yours. Always Google everything before you answer. You’ll only lose if you give up. God bless

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

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

Charles Toutant
01-29-2008

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.

Foreclosure Defense and Offense: The Importance of Hiring Local Counsel

State Bar Associations are wrestling with the issues of “Ghost-Writing” and Unauthorized Practice of Law.

On the one hand it is obvious that substantial additional education is required for local lawyers to properly file their schedules in bankruptcy petitions or properly defend the foreclosures in state courts. On the other hand, despite the paucity of attorneys who actually understand the new context of foreclosure defense, it is in the State’s interest to regulate these activities because of the obvious potential for abuse by an out-of-state lawyer who does not know local laws or procedures.

We therefore feel, as you have seen in prior posts, that is critically important to retain local counsel who is actually involved in the case and not merely a signatory. We also feel that pro se (no lawyer) litigants are getting in over their  heads despite all the resources on this blog.

As for the lawyers reading this blog, consider the following article which while somewhat dated, provides at least some insight into possible consequences of being “behind the scenes.”

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Unbundled Legal Services:
Can the Unseen Hand be Sanctioned?
© 1998 Charles F. Luce, Jr.
All Rights Reserved Worldwide

One hot topic in legal ethics circles is the propriety of attorneys “ghost writing” pleadings for ostensibly pro se parties, i.e., in matters in which the attorney has not entered an appearance. The question has produced a handful of ethics opinions, some emotionally charged judicial commentary, and has attracted enough interest that it might some day be the subject of a specific Rule of Professional Conduct.

“Ghost writing” is, by its nature, a loaded term, suggesting the specter of unethical conduct. Certainly it was chastised as such in a fiery opinion by Judge John Kane, Johnson v. Board of County Commissioners, 868 F. Supp. 1226 (D. Colo. 1994), aff’d on other grounds, 85 F.3d 489 (10th Cir. 1996), the case which can be fairly credited for riveting the attention of Colorado litigators to the “ghost writing” issue. Kane’s denouncement of a related issue — partial representation of a client sued in multiple capacities — tersely summarizes the anti-ghost writing viewpoint: “Whatever phantom is calling this tune, . . . , may not have it played in this court.” 868 F. Supp. at 1230.

Depending upon your viewpoint, ghost writing is either an insidious and deceitful way for ostensibly pro se litigants to gain an unfair advantage and attorneys to shirk their duties as officers of the court, or a victory for consumers’ rights, merely one aspect of another hot topic among legal ethicists, the so-called “unbundling of legal services.”

The Case for Exorcising the Spectral Hand

Three principal arguments for prohibiting ghost-written pleadings are most frequently advanced:  (1) Fed. R. Civ. P. 11(b) (or the state equivalent) provides that an attorney’s signature constitutes a certification that the pleading is well-founded in fact and law and not interposed for any improper purpose; (2) Model Rule of Professional Conduct (“RPC”) 8.4, whose several provisions generally prohibit dishonest or misleading conduct by attorneys; and (3) federal law, and the law of some states, requires that preferential treatment, principally in the form of lower standards, be given to pro se litigants by virtue of their unrepresented status. The fault with these general arguments against ghost writing, as well as with the arguments supporting the practice, is that the specific circumstances and consequences of each phantom pleading must be considered. As in most other matters of legal ethics, application of an uncompromising rule, applied in an uncritical manner, will yield unjust results frequently, and ethical results purely by accident.

The Rule 11 “hard liners” contend that it is unlawful and unethical for an attorney not to sign a pleading the attorney has substantially prepared. Rule 11 itself does not support this position; the rule provides that an attorney’s signature is a certification, not that an attorney must sign every pleading he or she has had a hand in preparing. Moreover, there are situations in which an ethical attorney will be unwilling to sign any pleading because of consequences completely unrelated to Rule 11.

For example, in many, if not most, jurisdictions, entry of appearance is accomplished with the stroke of a pen; the signing of any pleading accomplishes the entry of appearance. See, e.g., D.C.COLO. LR 83.5(B); Colo. R. Civ. P. 121, § 1-1(1). Litigators are all too keenly aware that the courthouse door swings more easily inward than outward. Many jurisdictions, including Colorado, take the position that, once having entered an appearance, an attorney is duty-bound to see a matter through to conclusion. People v. Demarest, 801 P.2d 6, 7(Colo. App. 1990) (“We further recognize the general rule that counsel who undertakes to conduct an action impliedly stipulates that he will prosecute it to a conclusion.”) (citing Riley v. District Court, 181 Colo. 90, 507 P.2d 464 (Colo.1973)). Accord People v. Ray, 801 P.2d 8, 9 (Colo. App. 1990); Anderson, Calder & Lembke v. District Court of Larimer County, 629 P.2d 603, 604-05 (Colo. 1981). Accordingly, it is not uncommon for an attorney’s plea to withdraw from a case on the grounds that the client has ceased paying to fall upon deaf or unsympathetic judicial ears. While attorneys should not be allowed to “sign out” as easily as they can “sign into” a case, so long as the key to the courtroom exit is held by a potentially unsympathetic judge, those lawyers who have before found themselves caught in the Venus flytrap of the ease of entry of appearance will be naturally reluctant to sign any pleading if the client’s ability to afford full representation is questionable.

Another common situation in which an attorney may be reluctant to sign on Rule 11’s dotted line is when a potential plaintiff comes calling on the eve of the running of the statute of limitations. If the client has left no time for the attorney to verify facts, how can an ethical lawyer certify that he has conducted a reasonable investigation? Until such an investigation has been made, how can the attorney assess his or her willingness to enlist for the duration of the case? In such a situation, it is obvious that an attorney cognizant of Rule 11 must not sign the complaint. But it is a false Hobson’s choice, and decidedly not in the interest of justice — in any meaningful sense of the word — to conclude that the attorney must either falsely certify the complaint under Rule 11 (a clear ethical violation), or permit the statute of limitations to run, depriving the client of a claim and exposing the attorney to a malpractice action on the theory that representation was undertaken negligently, or, more absurdly, that the lawyer should have undertaken representation.(1)

Another, thornier situation where legal services might be unbundled, are those instances in which insurance defense counsel has been retained by the insurer to provide defense only, even though there are meritorious counterclaims which might and ought to be stated if the insured were in a position to be able to afford full legal representation. If the client is unable to afford insurance counsel, who is already knowledgeable about the case, to provide full representation, the option of the insured to retain separate counsel to prosecute its counterclaims is illusory. Yet, at least in Judge Kane’s courtroom, partial representation of the client may not be allowed. See Johnson, 868 F. Supp. at 1230-31.

In situations such as those described above, the alternatives are either no assistance of counsel or, provided the attorney is willing to unbundle legal services, limited assistance of counsel, which may not extend to the execution of pleadings or appearance in the case. In the author’s opinion, the latter is plainly preferable to the former.

The Rule 11 hard liners who would not admit the existence of this possibility ignore not only the language of Rule 11 itself, but of the first rule of civil procedure, that all the rules “shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” Fed. R. Civ. P. 1 (emphasis added). While Rule 11 provides that an attorney’s signature is a certification that the pleading is well-grounded in fact and law, the converse, that the absence of an attorney’s signature is the hallmark of a spurious and frivolous pleading, is hogwash. Having debunked the hard line Rule 11 position, the RPC 8.4 argument must also fall; it is no more misleading or deceitful for an attorney to ghost write a meritorious pleading than it is proper for an attorney to sign a frivolous and groundless pleading. The real issue is not the presence or absence of a lawyer’s signature, but the intended or reasonably foreseeable effect of the unseen assistance of counsel.

The third argument made in support of an anti-ghost writing rule — that in federal courts and some jurisdictions pro se pleadings are treated more leniently — is considerably stronger than the Rule 11 argument. This rule, rooted in the edict of the Supreme Court’s decision in Haines v. Kerner, 404 U.S. 519, 520 (1972), was the foundation of Judge Kane’s concern in Johnson, supra. Moreover, as litigators know, even in those jurisdictions whose black-letter law provides that pro se litigants are to be given no preferential treatment, the reality is that they frequently are. Even the most ardent disciple of stare decisis will, if not bend over backwards, at least incline some degree in that direction when dealing with a pro se litigant, if only in the interest of “bulletproofing” appellate review. Accordingly, if the spectral solicitor knows that a pleading regarding which he has provided substantial assistance will be used in a jurisdiction which either, as a matter of law or practice, favors pro se litigants, the attorney’s hand, even if not identified, must be acknowledged to avoid a foreseeable unfair effect. This duty need not take the form of the attorney signing the pleading, but can be as effectively discharged by the attorney conspicuously indicating in the pleading, perhaps in the signature block, “prepared with the assistance of counsel,” or words to similar effect. Numerous ethics bodies considering this issue have reached the same conclusion. See infra.

The Case for A Beetle Juice Barrister

In assailing the Rule 11 hard line position, the author does not suggest that the best representation is for an attorney to operate the levers of justice from behind a curtain like the Wizard of Oz, nor to appear only in cameo. Even simple litigation requires a myriad of daily decisions by someone trained and experienced in law. An attorney who is only partially engaged, figuratively and/or literally, is a danger to himself and to the client, and should so advise the client. Further, there is a substantial risk that the client and attorney may bargain for unbundled, limited assistance, only to have a court hold the attorney to a more encompassing duty should the lawyer-coached client’s case go south. Although the Model Rules permit an attorney to limit the scope of representation, RPC 1.2(c), there is foreseeable and understandable judicial reluctance to “downsize” the standard of care. See generally, Cohen, Afraid of Ghosts, 83 A.B.A. J. 80 (Dec. 1997) (warning against the malpractice potential inherent in “sort of” representing a client). Agreeing to author, but not sign, pleadings undoubtedly creates an attorney-client relationship, and requires that the attorney fulfill all the duties normally owed to a client, even though the scope of representation is limited. The attorney must exercise caution that unseen assistance will not result in a fraud on the court or other litigants — such as creating an illusion of pro se representation if the forum’s rules require leniency be granted only to truly pro se parties — for this would violate Rule 8.4’s prohibition against directly or indirectly engaging in dishonest conduct. The attorney must also be mindful that the principal of unbundled legal services does not support the unauthorized practice of law; if it would be unlawful for an attorney to appear in a particular matter directly, it is no less unlawful for the attorney to “disappear.” See Iowa Opinion 94-35 (May 23, 1995) (attorney-serviceman stationed, but not licensed, in Georgia, may not prepare pleadings for nonlawyers in Georgia).

However, some legal assistance is preferable to none at all, and if the client is unable to afford the complete panoply of the attorney’s skills, it should not consequently be deprived of all of them. The authors of the Model Rules of Professional Conduct recognized this in adopting RPC 1.2(c): “A lawyer may limit the objectives of the representation if the client consents after consultation.” This is not simply an issue of indigent representation; many attorneys could not themselves afford uninsured legal representation. If justice is to be practically available for all, if the litigation is not to become literally “the sport of kings,” unbundling legal services must apply litigation services, too. See generally Colo. Bar Ass’n Opinion 101, Unbundled Legal Services (Jan. 17, 1998) (recognizing, but declining to address the issue of ghost writing).

The Law

Although the ethical rules implicated in the ghost writing debate are clear, no consensus has emerged regarding the ethical or legal propriety or procedure by which counselors may proffer a phantom pen.

The few published opinions express severe reservations regarding unbundled litigation services. Johnson, supra, concluded that the undisclosed assistance of counsel in drafting pleadings, “necessarily causes the court to apply the wrong tests in its decisional process and can very well produce unjust results,” 868 F. Supp. at 1231, violates Rule 11, id., and is “ipso facto lacking in candor,” id. at 1232 (citing RPC 1.2(d)). Laremont-Lopez, supra, held that ghost writing:

(1) unfairly exploits the Fourth Circuit’s mandate that the pleadings of pro se parties be held to a less stringent standard than pleadings drafted by lawyers . . . , (2) effectively nullifies the certification requirement of Rule 11 . . . and (3) circumvents the withdrawal of appearance requirements of Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia [permitting withdrawal only by order of the court and after reasonable client notice].

986 F. Supp. at 1078 (citations omitted). Another court properly granted a motion to compel disclosure of whether “behind the scenes” legal assistance was being provided an ostensibly pro se party:

Plaintiff argues that she has a legal fight [sic] to proceed pro se, whether or not she is an attorney. She also argues against any “unlawful intrusion into privileged information.” . . . The court has no quarrel or disagreement with these propositions. But they miss the point. The court does not propose to deny plaintiff the right to proceed pro se. Nor does it propose the invasion of privileged information. In this instance, however, plaintiff has sought to invoke the leniency of the court when she may not have a right to assert her pro se status for that purpose. Both the court and the parties, moreover, have a legitimate concern that an attorney who substantially participates in a case at least be identified and recognize the possibility that he or she may be required to enter appearance as counsel of record and thereby accept accountability for his or her participation, pursuant to Rule 11 and the rules of professional conduct applicable to attorneys. The grounds urged by plaintiff to deny the requested information do not trump the valid reasons for providing it on the record.

Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 887 (D. Kan. 1997) (citations omitted).

Ethics opinions have generally been more supportive of ghost writing as an unbundled legal service, though they have differed as to what kind of notice of legal assistance should be provided. See, e.g., Kentucky Bar Ass’n Opinion E-353 (Jan. 1991) (lawyer’s name, but not signature, must appear on pleadings); N.Y. City Bar Ass’n Opinion 1987-2 (document must state “Prepared by Counsel,” but attorney need not be identified); Iowa State Bar Ass’n Opinion 96-31 (1997) (proper for lawyer to prepare pro se pleadings provided court is informed of lawyer’s identity); New York State Ethics Opinion 613 (1990) (reaching a similar conclusion). Other ethics bodies see no reason for any identification of legal assistance to appear. See, e.g., Maine Ethics Commission No. 89 (Aug. 31, 1988); Los Angeles County Bar Ass’n No. 483 (March 20, 1995); Alaska Bar Ass’n Ethics Committee No. 93-1 (March 19, 1993) (noting “that judges are usually able to discern when a pro se litigant has received the assistance of counsel in preparing or drafting pleadings”). See also Virginia Bar Ass’n Opinion 1127 (1988) (Virginia attorneys may assist pro se litigants in preparing pleadings, briefs and discovery requests without entering an appearance).

Conclusion

The value of unbundling litigation services for clients is self-apparent. The risk to attorneys who may find themselves held accountable for a larger duty than they thought was bargained for is only slightly less obvious. A bright-line rule regarding ghost writing is neither possible, nor desirable; careful consideration must be given to the circumstances of each case and the rules of each forum. Instead, the author suggests the following standard be used in assessing the ethics of adopting the nom de plume of one’s client:  if the intent or reasonably foreseeable effect of ghost writing is that the court or another party will be misled or that a pro se litigant will obtain an unfair advantage, the act of ghost writing, if not the identity of the spectral scrivener, must be made known. The court may always compel the pro se litigant to identify the assisting counsel, if it believes there is a need. If, on the other hand, no deceit or unfair advantage is either intended or reasonably likely to occur, the assisting lawyer’s hand may remain unseen and unknown.

Whether such a standard will be adopted in Colorado remains to be seen. For now, those practicing in federal court would be wise to carefully consider Johnson, supra, and should at least insist that the pro se pleading indicate the assistance of counsel. However, the test proposed stands on solid footing, both as a matter of current ethics and social policy and, at least amongst bar ethicists, appears to be the “better rule.”

1. The suggestion of one court, that the “better practice” in this scenario “would be for counsel to acknowledge draftsmanship of the complaint . . . by signing and filing it and simultaneously filing a motion to withdraw as counsel accompanied by an appropriate explanation and brief,” Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1077 n.2 (E.D.Va 1977), assumes a benevolent and understanding judiciary, and trust that the motion to withdraw will be granted. Bad experiences have taught many litigators to not be so trusting. Moreover, the suggested motion to withdraw would be tantamount to an admission that the attorney had violated Rule 11.

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