June 5, 2019 – A petition filed with the Wisconsin Supreme Court seeks reinstatement of an original “ghostwriting” rule the supreme court adopted in 2014, a rule the Wisconsin Legislature modified in 2018 through an omnibus landlord-tenant bill.
The supreme court originally adopted the ghostwriting rule as part of rules and statutes to support and expand “limited scope representation” for self-represented litigants.
Lawyers could assist self-represented litigants in drafting pleadings, motions, or documents without identifying themselves by name, so long as the pleading, motion, or document noted that it was “prepared with the assistance of a lawyer.”
The ghostwriting rule was intended to encourage more attorneys to provide free or low-cost legal help in the types of cases that pro se litigants typically appear – civil, family, small claims, and probate cases – through “limited scope” drafting services.
For instance, many volunteer legal clinics allow self-represented litigants to visit with a volunteer lawyer, for free, to obtain the lawyer’s help in drafting a court filing. This allows lawyers to do pro bono work on a limited scope as time as resources permit.
But the Wisconsin Legislature in 2018 modified the ghostwriting rule, which is codified at Wis. Stat. § 802.05(2m), requiring lawyers to identify themselves and their bar numbers when they assist self-represented litigants in drafting court documents.
The legislature’s modification has a chilling effect on pro bono work, says attorney Jeffrey Davis of Quarles & Brady LLP, who, along with firm attorneys James Goldschmidt, Sydney Vanberg, and Lauren Zenk, filed Petition 19-16.
That is, lawyers may hesitate to provide free drafting services if their names are tied to the case, for various reasons. This is particularly true at bigger firms like Quarles & Brady, which are invested in pro bono initiatives such Legal Action of Wisconsin’s Eviction Defense Project.
“The original rule did not have a nefarious intent,” Davis said. “The court adopted it as a simple way to encourage more pro bono work. We believe it is important to bring the issue back to the court, which has worked hard to improve access to justice in Wisconsin.”
Legislature Reverses Course
The ghostwriting rule was studied and recommended by the Wisconsin Supreme Court’s Planning and Policy Advisory Committee (PPAC), which advises the court on planning and administration, as well as the expeditious handling of judicial matters.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The committee’s members include the supreme court’s chief justice, an appeals court judge, 13 circuit court judges, a prosecutor, a public defender, two members of the State Bar of Wisconsin’s Board of Governors, and other stakeholders in the court system.
Since 2006, PPAC has consistently identified assistance to self-represented litigants a top priority for the court system, a “critical issue” in many years.1
PPAC’s Subcommittee on Limited Scope Representation, in 2011, said “self-represented litigants have been a priority of the Wisconsin Court System for nearly a decade,”2 and recommended rules that would open more access to legal services.
PPAC, through the Director of State Courts, filed a formal rulemaking petition (petition 13-10), requesting that the supreme court adopt PPAC’s recommendations.
That included the ghostwriting rule. The subcommittee’s recommendation followed the trend in other states, as recommended by an ABA Task Force,3 to allow ghostwriting without identifying the lawyer if the document notes that legal assistance was provided.
The State Bar of Wisconsin’s Board of Governors and other groups and individuals overwhelmingly supported the petition, and the court unanimously adopted it in 2014.
In 2018, however, 2017 Wisconsin Act 317 was signed into law. The omnibus bill included many provisions relating to real estate and landlord-tenant law. It also included a provision that modified the ghostwriting rule the court adopted in 2014.
Under Wis. Stat. § 802.05(2m), attorneys must now identify themselves by name and bar number on the pleading, motion, or document that the self-represented litigant files with the court.
The legislature’s intent in making this discrete change was not entirely clear from the legislative materials. However, the legal counsel for the Apartment Association of Southeastern Wisconsin, a registered lobbyist, expressed the view that “providing free legal counsel does not prevent or avoid evictions – it simply delays them in most cases.”
Petition 19-16 asks the Wisconsin Supreme Court to reinstate the orginal ghostwriting rule and allow attorneys to remain anonymous on the filings in pro se cases, setting up a potential “separation of powers” issue between the judicial and legislative branch.
As the petition’s supporting memo highlights, the Wisconsin Constitution (Art. VII, section 3, cl. 1) gives the state supreme court “superintending and administrative authority over all courts” and Wis. Stat. section 751.12(1) gives the supreme court regulatory authority over “pleading, practice and procedure in judicial proceedings in all courts.”
However, section 751.12(4) says the statute “shall not abridge the right of the legislature to enact, modify, or repeal statutes or rules relating to pleading, practice or procedure.”
Thus, the Wisconsin Legislature had the power to modify the ghostwriting rule. But Jeff Davis does not believe the petition will trigger a power struggle between the judicial and legislative branches if the court decides to reinstate the original ghostwriting rule.
“Our petition notes that the Court and the Legislature share authority over court practice and procedure,” he said. “We believe the Court is in the best position to make the call on this particular issue because it studied the issue extensively and it applies to numerous areas of law.”
Any argument against the rule, Davis says, is outweighed by the argument that more low-income people in Wisconsin need access to free or low-cost legal services and the ghostwriting rule encourages lawyers who might otherwise be hesitant to assist.
The petition notes the chilling effect of requiring lawyers to identify themselves on pleadings, motions, or other documents that will ultimately be filed in court.
The potential for conflicts with current clients is one reason. A misunderstanding about the limited scope representation may be another.
“The risk of confusion and potential for being caught up in ongoing representation beyond the original, limited scope of the engagement is enough to turn some attorneys away,” the petition’s supporting memo states. That is, if the attorney’s name is on the document, the client may not understand that the lawyer’s representation has ended.
The supporting memo also notes that lawyers providing limited scope drafting services lose control over the document once the task is complete. Ethical dilemmas could surface if the client modifies the document before filing it with the attorney’s name.
The memo rejects any claim that the ghostwriting rule could bolster frivolous litigation, noting that “ghostwriting attorneys are still bound by their duties of competence, diligence, and candor” under the Rules of Professional Conduct for Attorneys.
“Attorneys who engage in unethical practice are no more drawn to pro bono endeavors than those who engage in candor and good faith,” the supporting memo states.
“There is no evidence that lawyers will be more likely to engage in bad practices simply because they are not required to affirmatively identify themselves on documents they have prepared.”
Numerous attorneys, law firms, and other legal organizations have already filed letters in support of Petition 19-16, including every lawyer at Gimbel, Reilly, Guerin & Brown LLP, home of two former State Bar presidents, Frank Gimbel and Mike Guerin.
The court has not yet scheduled a public hearing for Petition 19-16. The State Bar’s Board of Governors will likely consider whether to formally support the petition at a future board meeting, but has not weighed in on the petition to date.
1 See PPAC, Critical Issues: Planning Priorities for the Wisconsin Court System 2018-2020; Critical Issues: Planning Priorities for the Wisconsin Court System 2006–2008; Critical Issues: Planning Priorities for the Wisconsin Court System 2008–2010; Critical Issues: Planning Priorities for the Wisconsin Court System 2010–2012; Critical Issues: Planning Priorities for the Wisconsin Court System 2012–2014; Critical Issues: Planning Priorities for the Wisconsin Court System 2014–2016; Critical Issues: Planning Priorities for the Wisconsin Court System 2016-2018.
2 PPAC Subcommittee on Limited Scope Representation, Phase I: Feasibility Study and Recommendations (August 2011).
3 ABA Sec. Litig., Handbook on LSR Legal Assistance: A Report of the Modest Means Task Force 93 (2003).