Jan. 5, 2011 – Ghostwriting refers to the practice of a lawyer drafting pleadings, briefs, or other documents filed with a court by a pro se litigant when the lawyer’s role in drafting the document is not disclosed. Some jurisdictions prohibit the practice. Wisconsin has yet to address the issue of legal ghostwriting in case law, court rule, or ethics opinion.
The question is whether, in Wisconsin, it is improper to draft pleadings or other documents for a pro se litigant without disclosing the attorney’s involvement to the court. Such a situation could arise most frequently when a lawyer assists a pro se litigant on a pro bono or limited representation basis, or helps a family member or friend.
Currently, there is no Wisconsin authority to rely upon in answering the question. But lawyers can follow basic ethical guidelines to minimize the possibility of disciplinary sanctions.
Several federal district and appeals courts have looked with great disfavor on the practice of ghostwriting, including the U.S. Courts of Appeals for the First and Tenth circuits.1 These federal courts reject ghostwriting on the grounds that pro se litigants receive greater leniency in preparing pleadings and other documents, creating unfairness towards opposing parties.2
Not all assistance provided to clients in limited-scope representations constitutes ghostwriting. Only when the lawyer provides substantial and undisclosed assistance in drafting pleadings or other filings do the concerns expressed by the federal courts arise.
For instance, in Carris v. Durran, the Tenth Circuit Court of Appeals asserted that undisclosed ghostwriting may violate several of the American Bar Association’s (ABA) Model Rules of Professional Conduct, including the duty of candor, misrepresentation, and conduct that is prejudicial to the administration of justice.3 The court stated that drafting an appellate brief is “per se substantial, and must be acknowledged by signature.”4 The Carris court warned the attorney involved that future ghostwriting would result in the possibility of sanctions.
Further, the First Circuit Court of Appeals in State of Maine v. Ellis noted that nondisclosure in preparing briefs improperly allows attorneys to escape their obligations under Fed. R. Civ. P. 11, which imposes sanctions for certain misrepresentations to the court.5
Some state and local bar associations have taken the view that ghostwriting is unethical, including the Iowa, Massachusetts, and New York City bar associations.6 For Instance, the Iowa Bar Association’s Ethics Op. 94-35 (1995) states that ghost writing of pleadings violates the ethics rule that prohibits lawyers from “engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.” The Massachusetts Bar expressed similar concerns.
Other ethics committees, including the ABA’s Standing Committee on Ethics and Professional Responsibility, do not view ghostwriting as inherently unethical.
In Formal Ethics Op. 07-446 (2007), the ABA ethics committee reasoned that the Model Rules of Professional Conduct do not require lawyers to reveal assistance provided to pro se litigants because “the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.”
The ABA ethics committee reasoned that “if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal,” and “[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage.”
Further, the Los Angeles County Bar Association in Formal Op. 502 (1999) reasoned that, absent a court rule to the contrary, an attorney is not obligated to disclose the limited scope of representation in providing assistance to a pro se litigant, including the drafting of pleadings.
Although these ethics committees do not view ghost writing as inherently unethical, that doesn’t mean an attorney is immune from other codes of conduct. An attorney who provides substantial and undisclosed assistance still must adhere to all other ethical duties as a lawyer.
Even in jurisdictions that do not prohibit legal ghostwriting, certain situations or appearances of impropriety could lead to violations of court rules or professional codes of conduct.
Although ABA Formal Ethics Op. 07-446 does not condemn legal ghostwriting, ABA Informal Op. 1414 (1978) states that “extensive undisclosed participation by a lawyer … that permits the litigant falsely to appear as being without substantial professional assistance is improper.” Thus, attorneys should not allow pro se litigants, through assistance by the attorney, to gain the unfair advantages contemplated by some federal courts.
In some instances, a lawyer might ghostwrite documents primarily to conceal the lawyer’s involvement in the matter rather than pursuant to limited-scope retention. For example, in In re Brown, 354 B.R. 535 (Bankr. N.D. Okla. 2006), a lawyer acted as a ghostwriter in a matter in which the lawyer had been forced to previously withdraw because of a conflict.
In Warner v. Reiter, 2010 WL 3987434 (N.D. Cal.), the lawyer ghostwrote pleadings in order to conceal the fact that the lawyer was not eligible to practice before the court.
In these instances, the lawyers involved clearly intended to deceive the court and, as such, their behavior was in violation of rules prohibiting misrepresentation to courts (in Wisconsin, SCR 20:3.3). Such behavior is improper even in jurisdictions that explicitly permit ghostwriting.
In Ricotta v. State of California, 4 F. Supp. 2d 961 (S.D. Cal. 1998), however, the lawyer did not intend to deceive the court but provided drafts and did research for a pro se plaintiff. The defense asked the court to hold a lawyer in contempt for ghostwriting.
The court refused to hold the attorney in contempt, but found the lawyer’s actions were improper and noted that attorneys cross the line “when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented in some similar form in a motion before the Court.” Id. at 987.
Ghostwriting in Wisconsin
Since Wisconsin has yet to address the issue of ghostwriting, in case law, court rule, or ethics opinion, how should a lawyer handle a request from a pro se litigant in drafting pleadings?
Concealing the lawyer’s role in drafting the pleadings could be viewed as deceptive in violation of the lawyer’s duty of candor to the tribunal under Wisconsin Supreme Court Rule (SCR) 20:3.3. However, ABA ethics opinions typically carry considerable weight, so it’s unlikely that a lawyer relying on ABA Formal Op. 07-446 would face professional discipline for ghostwriting.
However, a lawyer wishing to avoid court-imposed sanctions, particularly in federal court, may wish to obtain the client’s consent to such a disclosure as a condition of accepting the engagement. Disclosure need not be extensive. For instance, the State Bar of Florida recommends that such pleadings simply state “Prepared with the Assistance of Counsel.”7
Some lawyers, again particularly in federal court, may wish to use extra caution and disclose the lawyer’s name and bar number. When disclosing assistance in drafting pleadings, the lawyer may wish to clarify to any other lawyers involved in the matter the client’s status with respect to SCR 20:4.2 – Communication with a person represented by counsel.
While it is unlikely that a Wisconsin lawyer would face discipline simply for agreeing to provide limited assistance to a client, part or all of which consists of ghostwriting documents for the client, the lawyer must be cautious to avoid misrepresentation.
If the primary purpose of the ghostwriting is to conceal the lawyer’s otherwise improper involvement in the matter, or is otherwise primarily intended to mislead or deceive a court or another, the lawyer is highly likely to face professional discipline, not for ghostwriting, but for engaging in fraud on the court (see SCR 20:3.3) or conduct involving dishonesty, deceit, fraud, or misrepresentation (see SCR 230:8.4(c)).
About the author
Timothy J. Pierce is ethics counsel for the State Bar of Wisconsin. He can be reached at (608) 250-6168, (800) 444-9404, ext. 6168, or org tpierce wisbar wisbar tpierce org. Joe Forward, legal writer for the State Bar, contributed to this article.
This article is adapted from the December 2010 State Bar Wisconsin Journal of Family Law, published by the Family Law Section. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.