Ghostwriting: An Ethical Issue in the Evolution of the Legal Field
By Blake M. Feamster
Evolution is inevitable in most things, including the practice of law. In the last few decades, the rise in the number of litigants proceeding pro se in court cases and the rise of online legal services, such as LegalZoom and Rocket Lawyer, have contributed to a shift in how legal services are provided in litigation.
Traditional full-service attorneys have had to adapt, leading many to provide “unbundled services” and “limited scope representation,” which is authorized by Rule 1.2(c) of the Oklahoma Rules of Professional Conduct (ORPC).1 Rather than providing the traditional “full-service” representation, generally including 1) gathering facts, 2) advising the client, 3) discovering facts of opposing party, 4) researching the law, 5) drafting documents, 6) negotiating and 7) representing the client in court, an attorney’s services are often limited to only one or two of these tasks. This shift in services and adaption to change is natural, but evolving attorneys must consider the important ethical issues associated with providing nontraditional legal services.
One ethical issue that has garnered significant attention in recent years is ghostwriting. Ghostwriting, as it pertains to the practice of law, is the anonymous writing of pleadings to a substantial degree by a licensed attorney for a pro se litigant.2 Unfortunately, few attorneys who currently provide unbundled services or limited scope representation have any knowledge about ghostwriting. They do not know that ghostwriting is discouraged by many courts, is prohibited by the 10th Circuit Court of Appeals or that they risk incurring sanctions for providing undisclosed services. This article provides a brief review of the conflicting authorities on ghostwriting, the reasons for the conflict and suggestions on how to avoid potential ethical errors if providing limited legal services to a client in Oklahoma.
OPINIONS ON GHOSTWRITING
Courts generally look with suspicion on the practice of attorneys drafting pleadings without disclosing their participation. One of the first cases to address the issue is the 1971 1st Circuit Court of Appeals case Ellis v. State of Maine.3 The court referred to the ever-increasing number of petitions filed by pro se litigants appearing before it and “[w]ith an eye to the future,” firmly held: “[i]f a brief is prepared in any substantial part by a member of the bar, it must be signed by him.” The court was concerned that ghostwriting would enable lawyers to escape their obligations to represent that good faith grounds exist to support all assertions and claims made in a pleading, as typified by FRCP Rule 11.4
Criticism of the practice of ghostwriting continued in subsequent federal court cases, but opinions varied on how the issue should be addressed in the absence of governing rules in a jurisdiction.5 One court, noting the lack of “any local, state or national rule regarding ghostwriting,” called for “local courts and professional bar associations to directly address the issue of ghostwriting and delineate what behavior is and is not appropriate.”6
State bar associations and ethics entities across the country, as well as the American Bar Association (ABA), ultimately answered the call. The ABA, focusing on the need for pro se litigants to have access to the courts and to obtain help they would not otherwise be able to afford, fully endorsed ghostwriting in 2007.7 Some state and local bars follow this approach, but others require only limited disclosure or disclosure in cases of “substantial assistance,” while others flatly prohibit ghostwriting or require full disclosure.8
Notably, no Oklahoma state court case, ethics opinion or rule regarding ghostwriting are known to exist. The 10th Circuit Court of Appeals, however, provided guidance on the issue to attorneys practicing in federal court in the 1998 case of Duran v. Carris.9 There, the appellate court rejected the practice when presented with an appellate brief ghostwritten by an attorney. Citing the obligations of attorneys under Fed. R. Civ. P. 11(a) and rules of professional conduct requiring candor and truthful representations, the court found that when giving counsel that results in court filings: “ethics requires that a lawyer acknowledge the giving of his advice by the signing of his name” and “the participation by an attorney in drafting an appellate brief is per se substantial and must be acknowledged by signature.”10 The court was not persuaded that ghostwriting provides positive contributions such as reduced fees or pro bono representation, which can still be accomplished through limited scope representation with identification.
The Duran court did somewhat temper its stance by cautioning that “the mere assistance of drafting, especially before a trial court, will not totally obviate some kind of lenient treatment due a substantially pro se litigant,” and did not impose sanctions, but instead publically admonished the ghostwriting attorney with the warning that future violations would result in the possible imposition of sanctions.11 Finally, in line with the 1st Circuit’s position, the court closed by proclaiming: “[w]e do not allow anonymous testimony in court: nor does this circuit allow ghostwritten briefs.”12
Two other circuit courts have rendered opinions on the subject that appear to follow recent authority more accepting of ghostwriting, leading to what some commentators have referred to as a split of opinion among the courts.13 In the 2011 case of In re Fengling Liu, the 2nd Circuit Court of Appeals concluded that the ghostwriting of a petition for an administrative case “did not constitute misconduct and therefore did not warrant the imposition of discipline.”14 Similarly, in the 2013 case of In re Hood, the 11th Circuit held that when an attorney prepares a court form filing with a court, the attorney has not “drafted” the form and the assistance need not be disclosed to the court.15 In reality, the perceived distinction between the circuits may be based more on the type of pleadings they were each reviewing and the degree of preparation and assistance provided by the ghostwriting attorneys to the pro se litigants in the cases, than a true disagreement.
ETHICAL CONCERNS RAISED BY GHOSTWRITING
Three primary concerns are typically expressed with respect to ghostwriting: 1) whether the practice unfairly allows a pro se litigant to benefit from the undisclosed assistance of counsel while at the same time receiving the benefit of the liberal construction of pleadings and procedures that courts apply to pro se litigants; 2) whether the failure to disclose assistance violates a lawyer’s professional responsibility duties to the court, to opposing counsel and to the client, such as the duties of candor and honesty and 3) whether ghostwriting shields the lawyer from potential sanctions for violations.16
Ghostwriting certainly has the potential to provide an unfair advantage to pro se litigants. As the United States Supreme Court has stated, pro se pleadings are held to “less stringent standards than formal pleadings drafted by lawyers.”17 Thus, although pro se pleadings are authored by lawyers, the fact that this authorship is not disclosed leads courts to give the pro se litigants and their pleadings more liberal treatment than they otherwise would have, as well as more liberal treatment than the opposing party receives.
Other authorities express the view that liberal treatment of pro se pleadings authored by attorneys is not a real problem. Entities such as the ABA are particularly focused on ensuring access to the courts through the pro se process and believe that if an “undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal,” thereby eliminating the need for liberal construction.18 Two dangers exist with this position, however and both are detrimental to pro se parties. First, permitting full, unrestricted ghostwriting could result in courts never liberally construing any pro se pleading. Second, an unknowing pro se litigant might mistakenly believe that he or she has received effective assistance from a ghostwriting attorney when in fact the assistance was inferior to what a traditional full-service client would have received. If an attorney is reluctant to offer assistance without anonymity, what is the level of service the attorney is actually providing?
The failure of lawyers to disclose legal assistance to pro se parties has also been viewed by courts as a violation of the duties of ethics and professional responsibility. One such duty is the duty of candor an attorney owes to the tribunal, set forth in ORPC 3.3,19 which prohibits an attorney from making misrepresentations or omissions to the court and ORPC 3.1,20 which, like 12 O.S. §2011,21 prohibits attorneys from bringing frivolous litigation and making frivolous claims. Courts are greatly concerned with ghostwriting attorneys who “author pleadings and necessarily guide the course of the litigation with an unseen hand.”22 By influencing proceedings and taking legal positions without disclosing their identities, the potential for misrepresentations or assertion of frivolous positions arises. Some courts believe that the very filing of a document that was prepared by an attorney as a “pro se” document is a misrepresentation, which in Oklahoma would violate the duties set forth in ORPC 3.3.23 The ABA argues, however, that absent an affirmative statement by the client that is attributed to the lawyer, it is not the lawyer who has made the statement and has been dishonest.24
Attorneys also owe duties to their clients, including the duties of loyalty, competency and confidentiality under OPRC 1.1,25 1.226 and 1.6,27 and courts have expressed a concern that ghostwriting can unfairly shield an attorney from potential sanctions for violations of these obligations, as well as those owed to the court and counsel. At least one court found that an attorney attempted to evade his duty of loyalty to a client by ghostwriting.28 Further, the failure to disclose the assistance of counsel provided through ghostwriting could potentially hide regularly occurring ethical violations which would otherwise be discovered and addressed if the court, opposing party and opposing counsel knew of the ghostwriting attorney’s existence.
THE BEST PRACTICE IS DISCLOSURE
Courts and other authorities have taken many different approaches in directing attorneys on what to do when engaging in ghostwriting. While some take the position that no disclosure or identification of counsel is required, others require specific types of disclosures, such as requiring disclosure of the extent of the assistance an attorney provided or requiring disclosure of the fact that assistance was provided, but not the identity of the lawyer who provided it.29
Colorado amended its civil procedure Rule 11 to specifically address ghostwriting in connection with permitting limited scope representation of pro se litigants.30 The rule clarifies that an attorney’s assistance in filling out preprinted and electronically published forms issued by the judicial branch for use in court is not subject to the rule. However, if an attorney undertakes to provide limited representation to a pro se party involved in a court proceeding, in accordance with Colo. RPC 1.2, the “pleadings and papers filed by the pro se party that were prepared with the drafting assistance of an attorney shall include the attorney’s name, address, telephone number and registration number.” The attorney must also advise the pro se party that this information must be included. Additionally, the rule specifies a violation may subject an attorney to sanctions.
No Oklahoma case law, court rule, rule of professional responsibility, ethics counsel opinion or other authority has been located regarding any type of disclosure required by Oklahoma state courts about ghostwriting. Further, while the 10th Circuit did give some guidance to federal court practitioners in the Duran case, the court admittedly left unanswered some critical questions, such as what amount of “substantial assistance” is needed before disclosure is required and whether every attorney that provides such assistance on a pro se pleading must make a disclosure.31 Given this situation and the fact that attorneys practicing in Oklahoma may be ghostwriting on a regular basis, the best practice for avoiding potential ethical violations is to include some form of disclosure, such as a single signature block that is preceded by the words “prepared with the assistance of,” for example:
Prepared with the assistance of:
/s/ Blake M. Feamster
Blake M. Feamster, OBA #31054
Widdows Law Firm PC
1861 East 71st Street
Tulsa, OK 74136
918-744-7440 / 918-744-7358 Fax
Unless and until the Oklahoma courts provide clarification on the ethical obligations of attorneys and the requirements for disclosure of assistance when providing unbundled legal services or limited scope representation, the best practice is to disclose the assistance.
Ghostwriting litigation is a practice engaged in by many Oklahoma attorneys. The provision of unbundled services and limited scope representation is almost certainly going to continue to increase in this modern era of legal practice and as a result, so are the ethical issues surrounding ghostwriting. Until Oklahoma attorneys are provided with clarity, the best policy is to disclose to the courts participation in litigation while navigating the evolving legal field of unbundled services and limited scope representation.
1. Oklahoma Rules of Professional Conduct, Rule 1.2(c): A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
2. Charles Alan Wright, et al., Federal Practice and Procedure §1333 (3d Ed. 1998, 2011 Update) (“Ghostwriting occurs when a pro se litigant receives legal assistance from an attorney in preparing the papers submitted to the court although the attorney does not sign the document”).
3. Ellis v. State of Maine, 448 F.2d 1325 (1st Cir. 1971).
4. Id. at 1328.
5. See Laremont-Lopez v. Se. Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1077 (E.D. Va. 1997), aff’d, 172 F.3d 44 (4th Cir. 1999); Johnson v. Board of County Com’rs for County of Fremont, 868 F. Supp. 1226, 1232 (D. Colo. 1994), aff’d on other grounds, 85 F.3d 489 (10th Cir. 1996); Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884 (D. KS 1997).
6. Ricotta v. California, 4 F. Supp. 2d 961, 988-89 (S.D. Cal. 1998), aff’d, 173 F.3d 861 (9th Cir. 1999).
7. ABA Standing Comm. on Ethics & Prof’l Resp., Formal Op. 07-446, Undisclosed Legal Assistance to Pro Se Litigants (2007) (superseding ABA Comm. on Ethics & Prof’s Resp., Inf. Op. 1414).
8. See Sam Bhojani, “Attorney Ghostwriting for Pro Se Litigants – A Practical and Bright-Line Solution to Resolve the Split of Authority Among Federal Circuits and State Bar Associations,” 65 SMU L. Rev. 653 (2012); 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 T. Marshall L. Rev. 31 (2014); John C. Rothermich, “Ethical and Procedural Implications of ‘Ghostwriting’ for Pro Se Litigants: Toward Increased Access to Civil Justice”, 67 Fordham L. Rev. 2687 (1999); In Re Dreamplay, Inc., 534 B.R. 106 (Bankr. D. Md. 2016).
9. Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001).
10. Id. at 1272.
11. Id. at 1273.
12. Id.; see also In re West, 338 B.R. 906, 917 (Bankr. N.D. Okla. 2006) (imposing sanctions of $1,000 on attorney who ghost-wrote documents)
13. See Bhojani, supra.
14. In re Fengling Liu, 664 F.3d 367, 373 (2d Cir. 2013).
15. In re Hood, 727 F.3d 1360, 1365 (11th Cir. 2013).
16. See Bhojani, supra; Klebanoff, supra.
17. Haines v. Kerner, 404 U.S. 519, 520 (1972).
18. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-446.
19. Oklahoma Rules of Professional Conduct, Rule 3.3(a)(1) (“A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”).
20. Oklahoma Rules of Professional Conduct, Rule 3.1 (“A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established”).
21. 12 O.S. 2016 §2011.1.
22. Johnson v. Board of County Com’rs for County of Fremont, 868 F. Supp. 1226, 1231 (D. Colo. 1994); see also Duran, supra, 238 F.3d at 1268.
23. Duran, supra, at 1273.
24. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-446.
25. Oklahoma Rules of Professional Conduct, Rule 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).
26. Oklahoma Rules of Professional Conduct, Rule 1.2 ((a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) The substance of (b) is in modified Comment at . (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
27. Oklahoma Rules of Professional Conduct, Rule 1.6.
28. Delso v. Trustees for Retirement Plan for Hourly Employees of Merck & Co., No. 04-3009 (AET), 2007 WL 766349, at *5 (D N.J. Mar. 6, 2007).
29. See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-446.
30. Colo. Formal Opinion 101, Unbundled Legal Services, Adopted Jan. 17, 1998, Addendum Issued 2006.
31. Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001).
ABOUT THE AUTHOR
Blake M. Feamster is an associate with Widdows Law Firm PC in Tulsa. She focuses her practice on family disputes in areas of divorce, guardianship, adoption and probate. Ms. Feamster is a 2012 graduate of The TU College of Law.
Originally published in the Oklahoma Bar Journal -- OBJ 87 pg. 2537 (Dec. 17, 2016)