Legal ghostwriting
Encyclopedia
Legal ghostwriting is a form of unbundled legal services
in the United States in which an attorney
drafts a document on behalf of a client
without formally appearing before the court
. Instead, the client represents his or herself pro se
.
Legal ghostwriting is one way in which a client can receive legal counsel while maintaining control of their case and avoiding higher legal costs. Attorneys offering legal ghostwriting services often charge a flat fee rather than billing by the hour as is typical for full-service attorneys.
formally endorsed the delivery of legal ghostwriting services by attorneys to pro se clients in 2007. In a formal opinion, the ABA deemed the practice consistent with Rule 1.2(c) of the American Bar Association Model Rules of Professional Conduct
which allows lawyers to unbundle their services to clients. According to the ABA opinion paper, lawyers should generally disclose the fact that papers were prepared by an attorney, but need not disclose their name of firm.
requires attorneys to disclose their assistance in papers submitted to the court. Attorneys are not. however, required to disclose their name or firm.
Other critics are concerned that when an attorney provides legal ghostwriting services to a client without disclosing his or her name, the attorney might be misleading the court, or seeking to avoid malpractice
lawsuits or court rules against frivolous lawsuits.
However, the ABA in its 2007 opinion paper claimed that these ethical concerns were overstated. It concluded that:
"[b]ecause 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 by Rule 8.4(c). Whether it is dishonest for the lawyer to provide undisclosed assistance to a pro se litigant turns on whether the court would be misled by failure to disclose such assistance. The lawyer is making no statement at all to the forum regarding the nature or scope of the representation, and indeed, may be obliged under Rules 1.210 and 1.611 not to reveal the fact of the representation. Absent an affirmative statement by the client, that can be attributed to the lawyer, that the documents were prepared without legal assistance, the lawyer has not been dishonest within the meaning of Rule 8.4(c). For the same reason, we reject the contention that a lawyer who does not appear in the action circumvents court rules requiring the assumption of responsibility for their pleadings. Such rules apply only if a lawyer signs the pleading and thereby makes an affirmative statement to the tribunal concerning the matter. Where a pro se litigant is assisted, no such duty is assumed. We conclude that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer’s conduct."
Unbundled legal services
Unbundled legal services is a method of legal representation in the United States in which an attorney and client agree to limit the scope of the attorney’s involvement in a lawsuit or other legal action, leaving responsibility for those other aspects of the case to the client...
in the United States in which an attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
drafts a document on behalf of a client
Client
Client may refer to:* Customer, someone who purchases or hires something from someone else* Client , software that accesses a remote service on another computer* The client who received patronage in ancient Rome...
without formally appearing before the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. Instead, the client represents his or herself pro se
Pro se legal representation in the United States
Pro se legal representation means advocating on one's own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal cases. Pro se is a Latin phrase...
.
Purpose
The growth of pro se litigants can be attributed to the high cost of litigation, anti-lawyer sentiment, and the advent of do-it-yourself law services. This segment of the pro se population may still need legal representation in order and to navigate the litigation process.Legal ghostwriting is one way in which a client can receive legal counsel while maintaining control of their case and avoiding higher legal costs. Attorneys offering legal ghostwriting services often charge a flat fee rather than billing by the hour as is typical for full-service attorneys.
American Bar Association
The ABAAmerican Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
formally endorsed the delivery of legal ghostwriting services by attorneys to pro se clients in 2007. In a formal opinion, the ABA deemed the practice consistent with Rule 1.2(c) of the American Bar Association Model Rules of Professional Conduct
American Bar Association Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct, created by the American Bar Association , are a set of rules that prescribe baseline standards of legal ethics and professional responsibility for lawyers in the United States. They were promulgated by the ABA House of Delegates upon the recommendation...
which allows lawyers to unbundle their services to clients. According to the ABA opinion paper, lawyers should generally disclose the fact that papers were prepared by an attorney, but need not disclose their name of firm.
New York
The New York County Law Association agreed with the ABA approach to legal ghostwriting in a 2010 ethics opinion paper. In that decision, NYCLA found that “…it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel. Disclosure of the fact that a pleading or submission was prepared by counsel need only be made ‘where necessary.”Criticism
Ethical concerns may arise for attorneys offering legal ghostwriting services to clients. A common criticism of legal ghostwriting is that it gives the self-represented litigant an unfair advantage because judges often grant pro se litigants leeway in the courtroom to make up for their lack of experience. Critics argue that when clients employ an attorney ghostwriter, they should not be entitled to that privilege. For this reason, the New York State Bar AssociationNew York State Bar Association
The New York State Bar Association , with 77,000 members, is the largest voluntary bar association in the United States.-History:The State Bar was founded with a constitution that dates to 1877...
requires attorneys to disclose their assistance in papers submitted to the court. Attorneys are not. however, required to disclose their name or firm.
Other critics are concerned that when an attorney provides legal ghostwriting services to a client without disclosing his or her name, the attorney might be misleading the court, or seeking to avoid malpractice
Malpractice
In law, malpractice is a type of negligence in, which the professional under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm...
lawsuits or court rules against frivolous lawsuits.
However, the ABA in its 2007 opinion paper claimed that these ethical concerns were overstated. It concluded that:
"[b]ecause 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 by Rule 8.4(c). Whether it is dishonest for the lawyer to provide undisclosed assistance to a pro se litigant turns on whether the court would be misled by failure to disclose such assistance. The lawyer is making no statement at all to the forum regarding the nature or scope of the representation, and indeed, may be obliged under Rules 1.210 and 1.611 not to reveal the fact of the representation. Absent an affirmative statement by the client, that can be attributed to the lawyer, that the documents were prepared without legal assistance, the lawyer has not been dishonest within the meaning of Rule 8.4(c). For the same reason, we reject the contention that a lawyer who does not appear in the action circumvents court rules requiring the assumption of responsibility for their pleadings. Such rules apply only if a lawyer signs the pleading and thereby makes an affirmative statement to the tribunal concerning the matter. Where a pro se litigant is assisted, no such duty is assumed. We conclude that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer’s conduct."