The Ethical Implications of Legal Ghostwriting

Ghostwriting on behalf of pro se litigants has sparked an interesting debate.  Although unrepresented parties may be at a bit of a disadvantage when presenting their position to a represented adversary, some may take advantage of an attorney lending assistance behind the scenes.  Legal ghostwriting is one form of “limited-scope representation”, or the unbundling of legal services, a practice in which a client retains an attorney for limited tasks as opposed to the traditional handling of all aspects of a matter. Rules regarding this practice vary widely by jurisdiction; many federal courts do not allow it but many state courts do.

Ghostwriting recently reentered the spotlight when the Rhode Island Supreme Court held that an attorney may not ghostwrite or otherwise assist a pro se litigant unless the attorney signs the document and discloses her identity and the extent of her assistance.  See FIA Card Services, N.A. v. Pichette.  In the case, the court held that an attorney may provide legal assistance to a pro se client as long as the scope of the attorney’s representation is reasonable and the litigant gives informed consent in a writing that sets forth the nature and scope of the attorney-client relationship.

The case illustrates a wider debate regarding limited scope representations.  Proponents note the practice enables pro se litigants to gain greater access to justice; a client who may only be able to afford limited legal services can decide where her resources are best allocated with regard to seeking an attorney’s assistance.

By the same token, awareness that her services will be limited only to writing may incentivize and encourage attorneys to accept pro bono matters from clients or to provide services to clients who would otherwise be unable to seek their day in court.

Opponents of ghostwriting note that a litigant using a ghostwriting may unfairly benefit from the court’s leniency when it comes to pro se pleadings.  Further, the ghostwriter’s aid may backfire if a pro se litigant is unable to explain what the ghostwriter has written.

So what to do when an attorney is approached by a client to ghostwrite a legal document? Consider the pros and cons, always remember to check your state’s rules before entering into any agreement for unbundled legal services, and keep these ethical rules in mind:

  • Sharply shape the scope. Model Rule 1.2(c) permits a lawyer to limit the scope of his or her representation so long as the limitation is reasonable and the client gives informed consent.  A limitation is “reasonable” if you can competently perform the service the client requested within the scope defined by your limited representation.
  • Write and be upright. The client may not be bound by the ethical rules, but you are, pursuant to Model Rule 8.4.  With regard to the substance of the document you are drafting, make sure what you are writing does not constitute dishonesty, fraud, deceit or misrepresentation. 
  • Operating out of your element? Make sure you are licensed to practice law in the jurisdiction where your client plans to file the document you are preparing.  Per Model Rule 5.5, ghostwriting for an out-of-state client may implicate the unauthorized practice of law, if these papers are filed in an out-of-state court.
  • Confidentiality complicates. The client may wish to keep your involvement a secret from the court and his adversary.  Are you bound to comply with this request given the confidentiality of the attorney-client relationship?  If and how this rule interfaces with Rule 8.4 and Rule 3.3 (regarding candor toward the tribunal) may lead to a sticky ethical situation.