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Ghostwriting Revisited

Recently the Orange County Bar Association issued a lengthy opinion (Formal Opinion 2014-1) discussing the ethical issues raised when “(1) a lawyer licensed to practice law only outside of California and who resides outside of California, or (2) a contract lawyer licensed to practice law in California, ghostwrites documents submitted to the court by another California lawyer”. In both cases in involvement of the ghostwriter is not disclosed to the court.

The discussion began by stating that “California law authorizes a client to file with the court a document drafted by an attorney, without disclosing to the court the attorney’s involvement” … and that the “opinion [only] considers whether a lawyer ethically may engage in ghostwriting not directly for a pro se litigant, but rather for another lawyer on behalf of a client.”

The opinion then addressed a number of specific ethical issues:

Duty of candor to the court and duty of honesty. In both of these matters the opinion concluded that providing unbundled legal services by drafting documents for another lawyer would not be dishonest or mislead the court.

Duty of competence and supervision. In these matters there is duty to supervise the work of the contract lawyer - analogous to supervising an associate of the lawyer or the firm.

Duty to keep the client informed. The opinion stated that a “lawyer using an outside contract lawyer to ghostwrite should inform his client that he has hired an outside lawyer or law firm if the use of the outside lawyer or law firm is a significant development.”

Unauthorized practice of law. Under Birbrower, Montalbano, Condon & Frank, PC v. Super. Ct., 17 Cal. 4th 119, 128 (1998), previously discussed in this column as well as numerous other publications, California has stringent rules on unauthorized practice. The opinion warns the parties to beware of engaging in unauthorized practice, which “will depend on the specific factual situation and the scope of Out-of-State Lawyer’s [sic] involvement.”

The opinion concluded: “There is nothing inherently unethical with a client or lawyer hiring another lawyer – often a contract lawyer – to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement.” A not unreasonable conclusion.

However, different considerations are involved when the ghostwriter writes for a pro se party. Jurisdictions differ on whether the involvement of the lawyer must be disclosed. The California opinion stated: “Those jurisdictions requiring disclosure generally base their conclusions on the notion that pro se litigants often receive special treatment from the court, and that, as a result, it would be unfair and dishonest if the pro se litigant in fact were represented in connection with a court filing.”

This view - that there should be no anonymous ghostwriting for pro se parties - was expressed in a January 28, 2013 case Erica Chriswell v. Big Score Entertainment in the USDC for the Northern District of Illinois in which the court stated: “The Court agrees with its sister courts that the practice of ’ghost-writing’ briefs for pro se litigants is unethical and will not be permitted.” The court then ordered Chriswell to disclose who, if anyone, has been assisting her in drafting her briefs.

However, this matter may have been resolved in Illinois by the June 14, 2013 amendment to Supreme Court Rule 137 which provides:

“(e) Attorney Assistance Not Requiring an Appearance or Signature. An attorney may assist a self-represented person in drafting or reviewing a pleading, motion, or other paper without making a general or limited scope appearance. Such assistance does not constitute either a general or limited scope appearance by the attorney. The self-represented person shall sign the pleading, motion, or other paper. An attorney providing drafting or reviewing assistance may rely on the self- represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false.”

This, and other Rule amendments adopted at the same time, have clarified that “ghostwriting” for a pro se party is a permissible unbundling of services in Illinois.