New ethics opinion on “ghostwriting”

When can a lawyer ethically ghostwrite?

Ghostwriting for Pro Se Parties

We previously wrote here about ghostwriting for pro se parties in a lawsuit. Pro se parties are people representing themselves in court without a lawyer.

The term ghostwriting refers to a situation where a lawyer drafts a legal document for the pro se party to sign and file with the court. In this instance, the lawyer does not appear before the court or put his/her name on the document.

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.”

In our prior post, we suggested that ghostwriting was not only ethical, but actually encouraged. We now have an Ethics Opinion from the Mississippi Bar to give us guidance on this subject.

Ethic Opinion No. 261

On June 21, 2018, the Ethics Committee of the Mississippi Bar issued its Opinion No. 261. The Opinion was written in response to two questions:

  1. Is it ethical for a lawyer to prepare documents for pro se litigants?
  2. If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

Here is the Committee’s analysis:

(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?

Yes.  The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client.  Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation.  This is commonly referred to as unbundled legal services.

It is important for lawyers to remember two important aspects of this type of limited scope representation.

First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation.

Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation.  For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.

(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

No.  The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer.

Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).  The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance.  As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unaware of the limited representation provided.

While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c).  A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement.

If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document.  The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance.  The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.

There are two additional points to make about this opinion.  The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure.  This opinion contemplates that the lawyer is performing discrete aspects of representation.  On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c).  Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter