Feb. 5, 2020 – The Wisconsin Supreme Court is grappling with its own authority to regulate pleading, practice, and procedure in judicial proceedings if the Wisconsin Legislature has enacted a statute that regulates pleading, practice, and procedure.
The grappling stems from a petition (19-16) to reinstate a “ghostwriting” rule, adopted in 2014, that allowed attorneys to help pro se litigants draft legal documents without disclosing their identities to promote pro bono work and limited scope representation.
The Wisconsin Supreme Court unanimously adopted the 2014 ghostwriting rule, codified at Wis. Stat. section 802.05(2m) (2013-14), but it was significantly modified by legislation enacted in 2018 and now requires drafting attorneys to disclose their names and bar numbers.
On Jan. 17, 2020, the Supreme Court held a public hearing on petition 19-16, filed by Quarles & Brady LLP, which participates in pro bono initiatives such as Legal Action of Wisconsin’s Eviction Defense Project in Milwaukee. The project, which helps tenants facing eviction, triggered discontent among landlords and led to the 2018 legislation.
The petition asks the court to reinstate the 2014 ghostwriting rule under its authority to regulate pleading, practice, and procedure, under Wis. Stat. section 751.12(1).
The Ghostwriting Rule
The 2014 ghostwriting rule allowed attorneys to provide brief drafting assistance to self-represented, low-income individuals and families by helping them fill out forms, pleadings, and other documents without disclosing the attorney’s name on the filings.
org jforward wisbar 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 org jforward wisbar email or by phone at (608) 250-6161.
The rule required legal documents prepared this way to note they were drafted “with the assistance of an attorney” if filed in court, but names were not required, allaying concerns of potential conflicts or the misconception that the attorney was obligated beyond the limited scope of drafting.
The ghostwriting rule was part of a package of rules intended to promote “limited scope representation” for low-income individuals who cannot not afford an attorney, one solution to address the ever-increasing number of pro se litigants in Wisconsin courts.
A 17-member subcommittee to the court’s Planning and Policy Advisory Committee (PPAC) studied the limited-scope representation issue for three years before making recommendations, including the ghostwriting rule, which was adopted unanimously.
The package of changes were designed to encourage lawyers to provide limited scope representation and brief legal assistance, and to encourage more people to consult with lawyers.
Four years later, in 2018, the legislature significantly modified the ghostwriting rule that applies in circuit court through an amended provision included within an omnibus landlord-tenant bill. The change was inserted at the request of counsel for the Apartment Association of Southeastern Wisconsin, Inc.
Now, under Wis. Stat. section 802.05(2m), attorneys can still help draft pleadings, motions, or documents filed by otherwise self-represented litigants, but the attorney must disclose their name and bar number next to the pro se litigant’s signature.
The statute applies to eviction cases as well as the many other case types, including family cases, with a high percentage of self-represented litigants in Wisconsin courts.
Now, fewer attorneys and firms are willing to provide pro bono assistance in the form of ghostwriting legal assistance, according to the Quarles & Brady petitioners and a numerous other representatives who submitted comments or testified Jan. 17 in support of petition 19-16.
Lawyers have expressed concerns about putting their names on legal documents that they no longer control after the pro se litigant leaves the legal clinic. Having the lawyer's name on the document also creates confusion about the attorney's limited role.
The Last Mover Problem
After a closed conference, the court requested additional briefing from interested parties to determine whether the court is constrained in its ability to change the statute in light of the legislature's 2018 revision.
The court noted that section 751.12(4), which grants the court’s authority to regulate pleading, practice, and procedure “shall not abridge the right of the legislature to enact, modify, or repeal statutes or rules relating to pleading, practice, or procedure.”
At the hearing, the parties accepted that pleading, practice, and procedure is an area of shared authority between the judicial and legislative branches but debated the correct outcome when both have exercised authority on the same issue.
“Who gets the final say?” Justice Rebecca Bradley asked. “The accurate but not very satisfying answer is, whoever has the last word gets the last word,” said Quarles & Brady attorney James Goldschmidt. “It’s a last mover problem.”
Goldschmidt stated his belief, based on discussions with Rep. Robert Brooks (R-Saukville), that the legislature may yield if the Supreme Court acts to reinstate the ghostwriting rule, but that constituents could always trigger future legislative action.
Goldschmidt noted section 751.12(2), which says “all statutes relating to pleading, practice, and procedure may be modified or suspended by rules” promulgated by the Supreme Court. He said that gives the court clear authority to reinstate the rule.
The judiciary’s authority should control the attorney ghostwriting issue, Goldschmidt argued, because the Supreme Court oversees the professional conduct of attorneys, the practice of law, and civil procedure in Wisconsin. And he rejected any argument that attorney ghostwriting implicates matters of public concern best suited for the legislature.
“We came to the court because from every conceivable angle, it is best situated to understand this problem and address it,” Goldschmidt said.
The Flip Side
Heiner Giese, an attorney and lobbyist for the Apartment Association of Southeastern Wisconsin Inc. – the only party to register opposition to the petition – acknowledged that the 2018 landlord legislation created an obstacle for limited-scope representation.
But Giese testified that pending legislation would address the problem by requiring attorneys to disclose their names and bar numbers only in “contested cases,” if requested by an opposing attorney. The court clerks would then add the information.
Others testified that litigation in eviction and other matters is inherently “contested.” Carlo Esqueda, clerk of court for Dane County, recently testified on the pending legislation before an Assembly committee – as did others opposed to the legislation.
Esqueda said requiring court clerks to add the names and bar numbers of attorneys who ghostwrite documents in contested cases, if requested by opposing counsel, “thrust clerks into a brand new role … as fact finding investigators.” That is, the clerk would need to track down the name and bar number of the otherwise anonymous attorney.
At the court’s hearing, Chief Justice Patience Roggensack asked Giese why name disclosures are so important on otherwise ghostwritten documents, from his view.
Giese pointed to a recent case in which an attorney assisted a pro se litigant in drafting an answer that, from his perspective, included a defense that was not substantiated. A court never ruled that the defense asserted was frivolous, but Giese thought it was.
“In a case like that, you’d like to know who raised that defense and why they raised it. I think you’d be entitled to know who that attorney was,” Giese said.
Requiring attorneys to disclose their names and bar numbers, Giese said, encourages them to follow section 802.05(2m)’s requirement that attorneys make an “independent reasonable inquiry into the facts” if the attorney has reason to believe the self-represented litigant’s representations are false or materially insufficient.
“This keeps them honest,” Giese said.
But testimony from other parties noted that attorneys are always subject to the rules of professional conduct, and there was no evidence that pro bono and limited-scope ghostwriting attorneys are asserting frivolous claims behind a shield of anonymity.
Justice Rebecca Dallet asked whether Giese, other than the case he mentioned, had proof that ghostwriting attorneys “are less likely to uphold their oath as attorneys, to not outwardly lie, to not outwardly make stuff up.” Giese did not provide specific evidence.
Other representatives testified at the court’s Jan. 17 public hearing to encourage the court to restore the ghostwriting rule as it was unanimously adopted in 2014.
Raphael Ramos, director of Legal Action of Wisconsin’s Eviction Defense Project, said the elimination of ghostwriting has subverted the purposes of the limited-scope representation rules – to promote access to justice – by discouraging otherwise willing attorneys from participating in pro bono opportunities like document drafting.
He said the Eviction Defense Project, which prompted the landlord legislation at issue, was launched in 2017. In 2016, there were 13,457 eviction cases filed in Milwaukee County. Tenants had attorney representation in 112 of those cases (less than 1%).
Since launching the Eviction Defense Project, using limited-scope representation in conjunction with pro bono attorneys, the program has increased representation rate of tenants by more than 600 percent, helping clients and increasing court efficiency.
He challenged Giese’s suggestion that frivolous defenses were being raised. “All attorneys are subject to ethical obligations,” Ramos said. “There is an important difference between a frivolous argument and one the opposing party simply does not like,” said Ramos, noting he is unaware of a single ethical complaint along these lines.
Ramos also said the limited-scope representation rules allow attorneys to rely on the representations of their clients, unless there’s reason to believe otherwise.
“Just because a client is poor does not mean they are not entitled to the same level of belief and respect that any other client is entitled to,” Ramos told the court.
Kyla Motts, legal director of the Milwaukee Justice Center – which assists more than 10,000 self-represented litigants per year, primarily in family law – said the 2018 legislation “has severely reduced attorney participation in their legal advice clinics.”
“Some attorneys have told us explicitly that they will no longer participate in attorney ghostwriting,” she said. “Others have just stopped volunteering, they have ‘ghosted’ us.” The sudden drop-off occurred immediately following the 2018 legislation, Motts said.
Dan Hoff, chair of the 18-member Wisconsin Access to Justice Commission, said low-income persons in all 72 counties “need every tool they can get for as much pro bono help as possible because this state does not have enough funding for civil legal access.” He also noted the court efficiencies created by attorney assistance.
Dean R. Dietrich, representing the State Bar of Wisconsin, noted the State Bar’s Board of Governors supports policies that encourage or enhance the quality and availability of legal services to the public, including ghostwriting.
He said the 2014 ghostwriting rule alleviated concerns that volunteer attorneys had with regard to ethics rules on conflicts, which encouraged increased pro bono work.
“It helped lawyers continue to provide representations in these settings without creating a significant problem as it relates to conflicts of interest,” said Dietrich, past chair of the State Bar Professional Ethics Committee.
He also said attorney ghostwriting relates to conduct of the lawyer as well as the lawyer-client relationship – clearly areas that are within the scope and jurisdiction of the Supreme Court to regulate – and the issue should be the court’s to address.
Hon. Michael Dwyer (retired), a Milwaukee County Circuit Court judge for 22 years and a member of PPAC’s Limited Scope Representation Subcommittee, which studied ghostwriting, said limited-scope representation “is the most significant tool for addressing the needs of self-represented litigants” who navigate the system without lawyers to help them distill and refine the issues for efficient resolution in the courts.
Judge Dwyer noted that limited-scope representation was a top priority for the Supreme Court’s PPAC from 2004 to 2015, prompting careful study and recommendations on the limited scope representation rules that the 2018 legislation changed.
Before the 2014 limited scope rules, Dwyer said,” the fundamental hindrance … was a fear by lawyers that if they provided limited scope representation, they would be recruited into the case on a basis beyond that which they had arranged to be involved.”
Margaret Niebler-Brown, director of the Volunteer Lawyers Project at Legal Action of Wisconsin, said the 2018 legislation requiring disclosure of attorney names prompted a decrease in the number of lawyers willing to provide drafting help to pro se litigants.
Elizabeth Groeschel, an attorney at Legal Action of Wisconsin in Oshkosh, said she is periodically contacted by local courts who see her name on documents she helps draft for pro se litigants even though she is not listed as an attorney-of-record.
Additional briefing and supplemental comments on the issue of whether the court is constrained in its ability to nullify a legislative act were due yesterday (Feb. 4).
It is unclear whether the court will hold another public hearing before deciding whether to restore the 2014 ghostwriting rule. AB 705, which would further amend section 802.05(2m) to require attorney name disclosures only in contested case, is in the Assembly’s Housing and Real Estate Committee, which has not voted on the proposal.