Attorney ghostwriting--the practice of preparing pleadings for pro se clients--seems to be a growing trend. It's often the best option for struggling clients and attorneys alike.
But is it unethical? Are you misleading the court by not signing your name to a pleading you prepared? Are you violating rules that require all pleadings to be signed by the attorney of record? Are you breaching your client obligations by only preparing a pleading?
The court recently declined to discipline Fengling Liu, a New York attorney who wrote pleadings for pro se clients without disclosing her involvement to the court. In doing so, the judges pointed to a number of recent ethical opinions, including one from the American Bar Association.
In 2007, the ABA's Standing Committee on Ethics and Professional Responsibility wrote that attorneys can ethically give legal assistance to pro se litigants. This includes drafting written submissions without disclosing it to the court.
Some jurisdictions have declined to adopt, or have yet to adopt, this advice. In the 2001 case Duran v. Carris, the 10th Circuit decided that attorney ghostwriting is misconduct. It not only gives the client the benefit of liberal pro se pleading rules, but it shields the attorney from liability. It also violates F.R.C.P. 11(a), which requires a signature by the attorney of record.
Kansas agrees with the 10th Circuit, having issued an ethics opinion in 2009. Attorneys can draft petitions for pro se clients, but they must be marked with "Prepared with the Assistance of Counsel."
Though the 2nd Circuit has chosen to allow attorney ghostwriting, the practice is not an unlimited one. If there's a possibility that nondisclosure would materially mislead the court, the attorney must sign his or her name. It's also implied that attorneys must be up front with clients and be very clear about the scope of representation.
- Scary Parts of Ghostwriting (ABA Journal)
- Courts Must Correct Pro Se Defendant's Misunderstandings (FindLaw's 11th Circuit Blog)
- Will Lawyers Soon Be Drafting Wills at the Supermarket? (FindLaw's Strategist)