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Is it ethical to assist a pro se party?
Pro se parties
A “pro se” party is a non-lawyer who is representing himself in court. Can a lawyer ethically assist that person “behind the scenes” by drafting documents to be filed in court?
Ghostwriting.
Ghostwriting is the practice of drafting a document and then letting someone else sign it as if he had actually written it.
In Auto Parts Mfg. Mississippi Inc. v. King Const. of Houston, LLC , 2014 WL 1217766, at *7 (N.D. Miss. Mar. 24, 2014), the district court “cautions that an attorney who ghostwrites motion briefs and pleadings is acting unethically and is subject to sanctions.”
Similarly, in Nelson v. Lake Charles Stevedores, L.L.C. , 2012 WL 4960919, at *5 (W.D. La. Oct. 17, 2012) (cited with approval in Auto Parts, supra ), the court issued this warning
“The plaintiff is cautioned, however, that she may not hold herself forth as being pro se if she does have the aid of counsel without exposing herself to future sanctions. The court also advises that any counsel who “ghost-writes” pleadings is treading on dangerously thin ice. The Court warns any attorney providing ghostwriting assistance that it constitutes unethical conduct.”
What do the rules of ethics in Mississippi say?
Rule 1.2 of the Mississippi Rules of Civil Procedure says a lawyer “may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
Importantly, the Comment to Rule 1.2 adds this:
“Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record .” (emphasis added)
Similarly, Rule 5.5 prohibits a lawyer from assisting a non-lawyer in the unauthorized practice of law. Yet, the Comment to Rule 5.5 explains that “a lawyer may counsel nonlawyers who wish to proceed pro se.”
The position of the American Bar Association.
In 2007, the ABA issued its Formal Opinion 07-446, in which it concluded that “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”
Some court decisions have concluded that ghostwriting violates a particular rule of court. But, that issue is separate and apart from whether it is an ethical violation.
So, based upon the foregoing, it does not appear that assisting a pro se party violates the Mississippi Rules of Professional Conduct. Before you do it, however, it may be wise to learn what the particular judge on the case thinks about it.
Craig Painter
The post Is it ethical to assist a pro se party? appeared first on Panter Law Firm, PLLC.
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