Ghostwriting, So Spooky It’s Illegal

By: Julia Szaniawska

The court has seen cases in recent years that involve the issue of an attorney drafting legal documents for a client, but not disclosing their name or not informing the court that they are doing so. [1] The court has not addressed the issue head on, but has seen cases that normally fall into three categories: (a) cases in which the attorney’s drafting of a pleading is not disclosed at all; (b) cases in which the litigant informs the Court that an attorney drafted a pleading, but does not disclose the attorney’s name; and (c) cases in which the drafting attorney’s name is disclosed, without that attorney entering an appearance or signing the pleading. [2]

The Federal Rules of Civil Procedure require that “every pleading, written motion and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or if the party is not represented by an attorney, shall be signed by the party.” [3]

Many jurisdictions have condemned ghostwriting as a violation of both the Model Code of Professional Responsibility and the Federal Rules of Civil Procedure. [4] The federal courts have, for the most part, ruled that ghostwriting should not be allowed, but the issue has been more extensively discussed by the district courts.[5] However, a few bar association ethics committees have been more lenient, by allowing ghostwriting. [6]

The Tenth Circuit Court in Duran v. Carris, stated that the attorney acted inappropriately when he ghostwrote a pro se brief for his former client without signing his name. [7] They viewed the attorney’s actions as a misrepresentation and in violation of the Federal Rules of Civil Procedure. [8] The court viewed that the attorney’s actions of assisting Mr. Duran in substantial legal matters, without having appeared within the case, only benefited the attorney by granting him immunity from “responsibility and accountability for his actions and counsel.” [9] In re Ellingson the court ruled that the attorney in drafting bankruptcy documents for the client without being signing these documents was an “attempt to persuade her clients to misstate the facts and conceal her unauthorized practice of law.” [10] The court found that the act of ghostwriting was in violation of the court rules and the ABA ethics. [11]

New York currently allows for ghostwriting, as per the recent case of In re Liu, the court ruled that there is no rule or precedent governing ghostwriting in New York, and therefore concluded that the attorney had no way of knowing that there was an obligation on her to disclose her participation the court. [12] The court determined that the attorney was not acting in bad faith, and in fact was acting in the best interest of her client and therefore chose to not discipline her ghostwriting. [13]

Courts are clearly split on how to address this issue.[14] Many attorneys believe they are helping their clients by ghostwriting and providing them with legal assistance for a lower price.[15] They are not aware of the risk they run by helping these pro se clients and that they could be potentially sanctioned, depending on the jurisdiction.[16] This becomes very confusing for attorneys that practice in multiple jurisdictions. Hopefully soon we will see some sort of uniformity so that lawyers can know whether this would be allowed or not.

[1] See In Re Liu, 664 F.3d 367 (2011).

[2] Id. at 369.

[3] Fed. R. Civ. P. 11(a).

[4] See Johnson v. Board of County Comm’rs, 868 F. Supp. 1226, 1231-32 (1994) (deciding that ghostwriting as a violation of Fed. R. Civ. P. 11 and ABA Model Code of Professional Responsibility DR 1-102(A)(4)); Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (finding that a brief that was “prepared in any substantial part by a member of the bar,” must be signed by that attorney).

[5] In Re Liu, 664 F.3d 367, 369 (2011).

[6] Id.; See Ass’n of the Bar of the City of New York, Comm. on Prof’l & Judicial Ethics. Op. 1987-2 (1987) (requiring any attorney that drafted a pleading for a pro se litigant to only disclose that he had a role in the drafting, but not to identify himself); ABA Standing Comm. on Ethics & Prof’l Resp., Formal Op. 07-446, Undisclosed Legal Assistance to Pro Se Litigants (2007) (concluding 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”); NYCLA Comm. on Prof’l Ethics, Op. 742 at 1 (2010) (Committee on Professional Ethics for the New York County Lawyers’ Association concluded that “it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel”).

[7] Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam).

[8] Id. at 1271-72.

[9] Id.

[10] Ellingson v. Monroe (In re Ellingson), 230 B.R. 426, 435 (Bankr. D. Mont. 1999).

[11] Id.

[12] In re Liu, 664 F.3d 367, 372 (2011).

[13] Id. at 373.

[14] See Id. at 367; In Re Ellingson, 230 B.R. 426 (Bankr. D. Mont. 1999).

[15] Benjamin Klebanoff, Ghostwriting- More Than Meets the Eye; Ghostwriting- Attorneys in Disguise: A Proposal For Handling Pro Se Parties Who Seek Limited Representation in Federal Court, 40 Thurgood Marshall L. Rev. 31, 41 (2014).

[16] Id. at 42.

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