Ghostbusters
by
by Grace M. Jones
Bar Counsel receives frequent inquiries from attorneys asking whether it is permissible to ghostwrite pleadings for litigants. Underlying these questions is the need to balance the advantages to indigent litigants that this type of assistance can offer with the fact that a growing number of court decisions and ethics opinions, including one by the Massachusetts Bar Association Committee on Professional Ethics, have raised serious legal and ethical concerns about this practice.
"Ghostwriting" refers to lawyers preparing litigation documents for pro se litigants without entering an appearance or disclosing their identities to the courts and opposing parties. The consensus of the courts and ethics committees that have considered the issue is that this practice circumvents Rule 11 of the applicable Rules of Civil Procedure and may also violate any of a number of disciplinary rules.
Rule 11 of both the Federal and Massachusetts Rules of Civil Procedure requires that each pleading be signed by an attorney unless the party is "not represented by an attorney…" In that event, the pleading is to be signed by the party. It has been held that a lawyer who substantially participates in the drafting of a pleading violates Rule 11 by not signing the pleading. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971). See also New York Bar Association Op. No. 613 (1990) (the preparation of a single pleading constitutes "active and substantial" aid, thus requiring the lawyer to disclose his or her participation), MBA Op. No. 98-1 (1998), Alaska Bar Association Op. No. 93-1 (1993), Los Angeles Lawyer Op. No. 502 (2000), and Virginia Legal Ethic Op. No. 195 (2000).
Rule 11 also provides that the signature of the lawyer constitutes certification that the pleading is not filed solely to cause delay or for other improper purpose and there is good ground to support it. The lawyer who drafts the pleading should also in good faith believe that the client's complaint is supported in law and fact. See Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416 (1998). If the ghostwritten pleading is not, in fact, supported by good grounds, the lawyer may also have violated Mass. R. Prof. C. 3.1, which prohibits a lawyer from bringing or defending claims on frivolous grounds, and 8.4(a), which prohibits violating the rules of professional conduct "through the acts of another."
Ghostwriting not only undermines Rule 11 but also may allow the party to gain the "unfair advantage" of appearing to be pro se when she or he has had the assistance of counsel in drafting the pleading. See MBA Op. Supra. See also ABA Informal Op. 1414 (1978) (undisclosed counsel who renders extensive assistance to a pro se litigant is involved in the litigant's misrepresentation to the court) and Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 886 (1997) (lawyers authoring pleadings for a pro se litigant is conduct falling far below the level of candor required of members of the bar). Assisting the party in this deception would violate Mass. R. Prof. C. 1.2(d) ("[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is . . . fraudulent . . .."), 3.3 (requiring candor towards a tribunal), 4.1 (requiring truthfulness in statements to others), 8.4 (c) (prohibiting deceptive and misleading conduct), and 8.4(d) (prohibiting conduct prejudicial to the administration of justice).
No appellate court in Massachusetts has directly addressed the propriety of ghostwriting. Until the Massachusetts courts speak to this issue, here is a short laundry list of things to consider before agreeing to ghostwrite for a pro se litigant:
(1) Limit the Scope of the Representation if possible. Mass. R. Prof. C. 1.2 (c) permits a lawyer to limit the scope of representation by agreement. A lawyer may agree to draft a pleading but limit involvement in the case. However, Mass. R. Prof. C. 1.1 and 1.3 also require that the representation be competent and diligent, and the limitations on representation may not be so great as to compromise the lawyer's duties under these rules. Comment [5] to Mass. R. Prof. C. 1.2. If the case presents complicated legal issues, it is imprudent for the lawyer to agree to draft a pleading without entering an appearance.
Before agreeing to limit the scope of the representation, the lawyer should determine whether limited representation would be counterproductive. The lawyer should assess whether the client understands the limited nature of the representation and whether the client is capable of proceeding pro se. For example, consider the pro se litigant's educational background and linguistic skills to determine whether the client is capable of proceeding pro se. Also, it is essential that the client consent to the limited scope of the representation after consultation, meaning that there has been communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question. See Mass. R. Prof. C. 1.2(c) and 9.1(c). A written agreement is advisable where the lawyer and the client agree to limit the scope of the representation. In addition, the lawyer should revisit the discussion of the limited representation with the client if the lawyer perceives that the client mistakenly believes that the scope of the representation is different than that assumed by the lawyer.
(2) Assess the Merits of the Pleading. To comply with Rules 1.1 and 1.3 as well as Rule 11, the lawyer who is considering drafting a pleading for a client to file pro se must at a minimum first assess the merits of the case. The lawyer may not participate in the bringing of a frivolous claim or in defending against a claim on frivolous grounds.
(3) Disclosure. A lawyer should disclose to the court and the opposing party his or her preparation of any litigation documents, even a single pleading, and disclose the limited scope of the representation. Signing the pleadings need not constitute an appearance. See Mass. R. Civ. P. 11(b)(1) ("The filing of any pleading, motion . . . shall constitute an appearance . . . unless the paper states otherwise"). Compare Admonition No. 97-62, 13 Mass. Att'y Disc. R. 969 (lawyer drafted litigation documents without limiting appearance, but did not intend to represent the client at hearings).
Lawyers must be mindful that limiting the scope of the representation to "ghostwriting" does not negate the creation of an attorney-client relationship. With that in mind, and as the Massachusetts civil courts become more and more inundated with pro se litigants, one challenge in the coming years for the courts and members of the bar is to determine how to effectively assist pro se litigants to ensure access to civil justice without violating legal and ethical rules.
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