Inside Track: Ethical Dilemma: 'Ghostwriting' and Limited-scope Representation: Is My Name and Bar Number Required?:

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    Ethical Dilemma:
    'Ghostwriting' and Limited-scope Representation: Is My Name and Bar Number Required?

    With all the changes in the past few years in limited-scope representation, lawyers who provide ghostwriting in limited-scope representation need to be aware of changes affecting their responsibilities under the rules of professional conduct.
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    June 6, 2018 – It can be confusing, with all the recent changes in rules regarding “ghostwriting” in limited-scope representations for pro se individuals, to stay abreast of the current requirements. Do you need to put your name and bar number on limited-scope documents?

    Tim Pierceorg tpierce wisbar Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by org tpierce wisbar email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    Question

    I volunteer with a local legal clinic to provide limited-scope representation to low-income individuals. One of the things I do is “ghostwrite” pleadings to be filed with the court.

    I know that, since the rules change in 2015, ghostwriting is permitted so long as the pleadings indicate that they were “prepared with the assistance of counsel.”

    Recently I heard that there was a change and that ghostwriting may no longer be OK. Is that true?

    Answer

    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 documents is not disclosed is often referred to as “ghostwriting.”

    In the past, there was some uncertainty over the practice, because several federal courts and ethics committees had opined that the practice was unethical.

    Until recently, Wisconsin had not addressed the issue of ghostwriting in case law, court rule, or ethics opinion.

    In June 2014, however, the Wisconsin Supreme Court unanimously adopted Rules Petition 13-10 and ordered the amendment of SCR Chapter 20 and the Wis. Stat. chapters 800, 801, 802, and 809 relating to limited-scope representation.

    Among these amendments – effective Jan. 1, 2015 – are:

    SCR 20:1.2(cm): A lawyer may prepare pleadings, briefs, and other documents to be filed with the court as long as such filings clearly indicate on the document the statement: “This document was prepared with the assistance of a lawyer.”

    Wisconsin Committee Comment to SCR 20:1.2(cm)  

    A lawyer may prepare pleadings, briefs, and other documents to be filed with the court as long as such filings clearly indicate that the filings are “prepared with the assistance of a lawyer.” Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case.

    Wis. Stat. § 802.05(2m) [Additional Representations to Court as to Preparation of Pleadings or Other Documents]

    1. A lawyer may draft or assist in drafting a pleading, motion, or document filed by an otherwise self-represented person.
    2. The attorney is not required to sign the document.
    3. The document must contain a statement immediately adjacent to the person’s signature that “This document was prepared with the assistance of a lawyer.”

    Wis. Stat. § 809.19(1)(h) [Rules of Appellate Procedure - Signatures]

    If the brief was prepared with the drafting assistance of an attorney under §802.05(2m), the brief must contain a statement that “This document was prepared with the assistance of a lawyer.”

    SCR 20:3.1(am): A lawyer providing limited scope representation pursuant to SCR 20:1.2(c) may rely on the otherwise self-represented person’s representation of the facts, unless the lawyer has reason to believe that such representations are false, or materially insufficient, in which instance the lawyer shall make an independent inquiry into the facts.

    Thus, after Jan. 1, 2015, Wisconsin lawyers had clear answers to the questions whether ghostwriting is permissible and if so, how it should be done.

    Recent legislative action has affected this. On April 18, 2018, 2017 WI Act 317 became effective.

    This act amended Wis. Stat. section 802.05(2m) as follows:

    ADDITIONAL REPRESENTATIONS TO COURT AS TO PREPARATION OF PLEADINGS OR OTHER DOCUMENTS. An attorney may draft or assist in drafting a pleading, motion or document filed by an otherwise self-represented person. The attorney is not required to sign the pleading, motion or document. Any such document must contain a statement immediately adjacent to the person’s signature that "This document was prepared with the assistance of a lawyer."," followed by the name of the attorney and the attorney's state bar number. The attorney providing such drafting assistance may rely on the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe that such representations are false, or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

    Thus, the act created the requirement that lawyers who ghostwrite pleadings must ensure that their names and bar numbers are on the ghostwritten pleading or other document to be filed with the court and renders the statute no longer consistent with SCR 20:1.2(cm), which was not changed.

    How to Comply

    Given this disconnect, how does a lawyer comply with legal and ethical requirements? SCR 20:8.4(f) provides the answer; that rule states that it is misconduct for a lawyer to:

    (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers;1 (emphasis added)

    Lawyers who ghostwrite pleadings in circuit court or municipal court2 must therefore comply with the requirements of the current section 802.05(2m): Put the phrase “This document was prepared with the assistance of a lawyer” followed by their name and bar number.

    Wis. Stat. 809.19(1)(h) was not amended, and while referencing section 802.05(2m), this statute requires that a lawyer who ghostwrites an appellate brief only ensure that the statement “This document was prepared with the assistance of a lawyer” appear on the brief.

    Have an Ethical Dilemma?

    Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel org tpierce wisbar Timothy Pierce and org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.

    However, given that the appellate rule references section 802.05(2m), it is not clear at this point whether the expanded disclosure requirements would be construed to apply to documents filed in appellate proceedings. Lawyers may wish to exercise caution and put the lawyer’s name and bar number on ghostwritten appellate briefs and pleadings.

    The rules changes and amendments to statutes were intended to harmonize lawyers’ obligations under the disciplinary rules and procedural statutes, and the recent legislative action has disrupted that harmony.

    In Wisconsin, both the supreme court and legislature may modify the rules of civil procedure.3

    Whether there will be future changes to the rules of civil procedure, the disciplinary rules, both or neither remains to be seen.

    But for now, lawyers who provide ghostwriting limited-scope representation need to be aware of this change affecting their responsibilities under the rules of professional conduct.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    • Can You Refer a Case to Other Lawyers When There's a Conflict of Interest? April 18, 2018
      You're approached about a case, but realize you can't take it because of a potential conflict. Is it OK for you to recommend another lawyer or law firm if the client asks for recommendations?

    • Can You Bill a Client for Creating the Bill? April 4, 2018
      Is it OK to bill your client for the time spent in creating the bill and for doing other administrative tasks? Or it is unreasonable to bill clients for time spent on administrative tasks that are only ancillary to the provision of legal services to the client?

    Endnotes

    1 There are numerous examples of discipline arising under SCR 20:8.4(f). For an example of a lawyer being disciplined for failing to abide by the requirements of the bankruptcy code, see OLR Private Reprimand 2014-9. See also SCR 20:3.4(c), which requires lawyers to abide by their obligations under the rules of a tribunal.

    2 See Wis. Stat. section 800.035(1m), which applies the requirements of section 802.05(4m) to lawyers who provide limited-scope assistance to individuals appearing in municipal court.

    3 See, e.g., Split Rock Hardwoods, Inc. v. Lumber Liquidators, 2002 WI 66, 253 Wis.2d 238, 646 N.W.2d 19. To the best of the author’s knowledge, it appears unclear as to whether the legislature or the court has the final say.




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