by Wilton H. Strickland

An old saying goes that a man who represents himself in court has a fool for a client. I don’t hold to that homily, which I suspect originated among lawyers to scare up more business. Many people represent themselves as pro se litigants and manage to obtain good results while also saving a large amount of money.

Some pro se litigants walk a middle path by representing themselves while also seeking limited assistance from an attorney. This is known as “unbundling” of legal services to make them more flexible and affordable. Indeed, pro se litigants often contact me out of the blue for help with drafting pleadings, motions, or appellate briefs that will bear their names without requiring me to appear as the attorney of record. This can be an ethical minefield, though, because not all jurisdictions look kindly on this sort of “ghostwriting” for pro se litigants. The American Bar Association and the two jurisdictions where I am licensed to practice take different approaches, which I’ll review below. If you are an attorney who offers these types of limited services, I encourage you to look at the ethics rules applicable to you as well.

American Bar Association (open-minded toward ghostwriting)

In its Formal Opinion 07-446 (2007), the American Bar Association announced a favorable view toward attorneys who ghostwrite for pro se litigants. The Opinion downplays the supposed danger that pro se litigants will get an unfair advantage from this. For one, it is obvious when strong arguments have been prepared by an attorney. For another, even if the attorney drops the ball and makes weak arguments, this means that the pro se litigant gains no advantage anyway. The Opinion concludes as follows:

Because there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed. Similarly, we do not believe that nondisclosure of the fact of legal assistance is dishonest so as to be prohibited[.]

This favorable view resurfaced years later in Formal Opinion 471 (2015), which emphasizes how “unbundling” legal services makes them more available to people of modest means who otherwise could not afford to hire counsel.

So, according to the American Bar Association, an attorney may ghostwrite for pro se litigants without making any disclosure to the court or to other parties.

Florida Bar (more cautious toward ghostwriting)

In its Opinion 79-7 (2000), the Florida Bar advised that attorneys indeed may help pro se litigants without appearing on the record, provided that certain precautions are followed. For one, any filing that is prepared with an attorney’s help must state, “Prepared with Assistance of Counsel.” For another, the full range of ethical duties is triggered even though the attorney’s assistance may be limited:

The Committee also cautions lawyers that assisting pro se litigants by drafting pleadings on their behalf triggers an attorney-client relationship. Accordingly, a lawyer who aids a pro se litigant in such a manner owes the litigant/client all attendant ethical obligations, including but not limited to, duties of competence (Rule 4-1.1), communication (Rule 4-1.4), confidentiality (Rule 4-1.6), and avoidance of conflicts of interest (Rules 4-1.7, 4-1.9 and 4-1.10). Thus, a lawyer assisting a pro se litigant must, among other things, explain the scope and consequences of the lawyer-client relationship with the client.

After this Opinion was issued, Rule 4-1.2 of the Florida Rules of Professional Conduct was amended to add subsection (c), which allows for unbundling of legal services and thereby relieves clients of having to pay a full and hefty price for attorney assistance.

Montana Bar (hostile toward ghostwriting)

Quite different from how the American Bar Association and the Florida Bar approach ghostwriting, the Montana Bar announced an extremely hostile view in its Opinion 101216 (2010). This Opinion was issued in response to a request by the Montana Supreme Court for comments regarding proposed rule changes that would allow for unbundling of legal services in general and for ghostwriting in particular. Unable to hide its disdain, the Opinion begins by equating unbundled legal services with incompetence:

A recognized need to expand services to indigent Montanans has gone far beyond the stated purpose. If the goal is to expand services to indigent Montanans, there is no need to develop rules which only serve to dilute the ethical standards of Montana practice.

Historically, it has been presumed that clients are best served by attorneys who are fully informed of the facts and the law relating to the matters presented. The proposed Rules are a troubling step in the direction of “mass produced” or “drive through” representation which, in the Committee’s view cannot help but reduce the quality of the services provided. The proposed Rules have already been the subject of a CLE titled “How to Grow Your Law Practice,” with the pitch to those interested in “expanding your practice, marketing your practice and increasing your client base by tapping into a new pool of ‘pay as you go’ clients.” The tail is wagging the entire legal profession dog, and the proposals before the Court have too many unintended consequences.

The Committee is concerned that what is being presented as a means of
assisting (primarily) low income clients would risk further legitimizing a trend toward a reduced and qualitatively lesser form of legal representation. The Committee is further concerned that limited scope representation may be attractive to practitioners who, up to now, were reluctant to engage in various areas of practice, but now will be encouraged to do so without the necessary experience to engage in the area in a knowledgeable and ethical manner. If the Court adopts the proposed rule changes, the result will be a sea change for practice in Montana. . . .

The proposed rule seems to contemplate full attorney service and the level of competence that accompanies it, then limited scope service and the level of competence that comes with that. . . .

It is this Committee’s opinion that there is only one level of competence.
To dilute Montana’s rules with the proposed language is to do a disservice to limited scope clients and undermine the stated goal of the access to justice community of meeting unmet legal needs.

This alarmist condemnation comes across as a blend of elitism and protectionism. Supposedly, an attorney who prefers to focus on certain aspects of legal practice and charges a reduced fee is unethical, since any attorney worth his salt would be running to and fro while charging full freight. It never occurs to the authors that some of us who have practiced for many years and are highly competent can reduce our overhead expenses while increasing our quality of life. This actually makes us more proficient at what we do because we can afford to devote more energy and attention to it, and this is precisely why most of my clients are full-service attorneys who are too busy to think of, research, and write complex arguments. If the goal truly is to help clients, the unbundling of legal services is a good thing. 

But the Opinion directs even more ire at the proposed change to Rule 11 of the Montana Rules of Civil Procedure, which specifically authorizes ghostwriting: “An attorney may help to draft a pleading, motion, or document filed by an otherwise self-represented person, and the attorney need not sign that pleading, motion, or document. . . .” This modest allowance supposedly will usher in a parade of horribles, so the Opinion goes out of its way to reject the American Bar Association’s Formal Opinion 07-446 and to hurl more slings and arrows at attorneys who dare to tailor their services:

We on the Montana Ethics Committee disagree [with Formal Opinion 07-446]. Our Bar in Montana is small. We generally know opposing counsel. To have a practitioner who deliberately chooses to walk a fine line regarding professional conduct involved as a ghost only serves to create chaos for the courts and retained opposing counsel. . . .

The pro se who retained an attorney to ghostwrite a document that the
tribunal deems ineffective is an unhappy pro se. The potential for a
disciplinary or malpractice complaint is significant, and any efficiency
realized in the judicial system by allowing ghostwriting is undone. The
ABA also uses the counter above to parry the argument that by having a
lawyer secretly ghostwrite pleadings, the unrepresented litigant gets the best of both worlds—trained lawyer assistance and judicial leeway. But again, small help exacerbates issues, it does not resolve them. Even a limited scope lawyer is more inclined to tell a client “Quit being a damn fool and go home” than a ghost lawyer doing a discrete task. Cheap, fast lawyers do not serve as counselors at law, but as draftsmen, and there is no doubt that given the opportunity, abuse will follow. The Committee is concerned that complaints will be filed that should never be filed, but for the $1,000 paid to a ghost lawyer to draft a complaint for which he or she is not responsible to the Court for the matters alleged.

In addition to the above, it is the experience of this Committee, all practicing lawyers who have billed clients for their services, that documents filed by ghostwriters cost their clients, whether full or limited service, more in the end. It is their experience that the represented client’s lawyer will be asked by the Judge to draft the necessary documents, and they find themselves responding to arguments that have no merit, with no dispassionate individual standing between the Court and their brief in response to a peculiar motion. Again, it seems the potential for increasing the workload of the Courts is high.

This language is as insulting as it is unhinged. The authors seem incapable of imagining an attorney who is competent, experienced, and conscientious yet who prefers not to provide the panoply of services that an ordinary law firm would. In the Opinion’s jaundiced view, a full-service practitioner who shambles into court and offers half-baked arguments is more respectable than a limited-service practitioner who earnestly focuses on presenting valid, creative, and articulate arguments in written filings. This sort of work is not mere draftsmanship, but rather is intellectually demanding and requires craftsmanship. I often have to outline potential arguments in detail before researching them and scrutinizing the authorities cited by the opposition. Only then can I begin drafting a thoughtful and persuasive argument. I also speak from experience when I say that many of the filings I have reviewed from full-service practitioners over the years are poorly researched, inarticulate, or even self-defeating. There is nothing inherent about a full-service firm that guarantees competence, just as there is nothing inherent about a limited-service firm that threatens it. Once again, it seems that the Opinion’s disdain boils down to a fear of competition (though it is dressed up as professionalism). 

Notwithstanding the Opinion’s hysterical condemnations, cooler heads prevailed at the Montana Supreme Court, which in 2011 authorized the ghostwriting change to Rule 11 and the unbundling-of-services changes to other rules. In re Revisions to the Mont. Rules of Civ. Proc., No. AF 07-0157, 2011 Mont. LEXIS 528 (Apr. 26, 2011). The only precaution an attorney must take under the new Rule 11(e) is to inquire into the facts of the case if there is reason to believe that the pro se litigant is not representing them thoroughly or accurately.  

Conclusion

If you are an attorney who provides limited services such as ghostwriting, you should check the ethical and procedural rules in the jurisdiction(s) where you practice. Moreover, you should always strive to provide quality services no matter how limited in scope they might be. The client deserves it, and it will help keep the entire legal profession on its toes.