Ghostwriting Controversy

• Author: David L. Hudson Jr.
• Pages: 24-25

Ghostwriting Controversy

Is there an ethical problem with attorneys drafting for pro se clients?

By David L. Hudson Jr.

Thomas Ice and his team of at torneys

often help clients writ e pleadings and

complete other tasks. Ice thin ks his

business model improves access t o

justice for those who otherw ise cannot

a ord the often- exorbitant hourly fees

of the legal profession.

“We don’t see ghostwriting as an e thical

problem,” says Ice, a Florida lawyer based

in Palm Beach Count y who founded the

virtua l fi rm Ice Legal. “We see it as helping

the access-to -justice problem. Not only

is everyt hing we are doing ethical but

also we are doing something in prov iding

unbundled legal serv ices that is recom-

mended by all the think ta nks to solve

the access-to -justice problem.”

Ice came up with his busines s model

after spinning hi s wheels during court

hearings on foreclosure ca ses in which

he was required to sit for hours whi le the

judge handled other hearings.

“We noted that some judges were espe-

cially abusive in foreclosure c ases with

regard to attorne y time,” he says. “Some

judges would call you down for a hear ing

every month, and you might wast e hours

just sitting there.”

From that experience, Ice L egal was created to assist

clients with their ow n advocacy. “We coach clients from

the sidelines; we draft motions; we get them fi led for cli-

ents; and we prepare clients for their hear ings,” Ice says.

“We do all these things for as lit tle as $100 a month. We

feel we are on the cutting edge of ac cess to justice.”

His e orts have ir ritated a few judges and inspired the

wrath of some opposing lawyers.

ETHICS RULES RUNDOWN

Ice’s activities fall w ithin the ambit of Rule 4-1.2 of

the Florida Bar’s Rules of Professional C onduct, titled

“Objectives and Scope of Represent ation.” The rule says

lawyers may provide limit ed representation, as long as

the issue is worked out clearly with the cl ient.

However, the comments to the rule say the lawyer and

client can work out an arrangement in which t he lawyer

provides advice and w rites documents but doesn’t have to

sign them. The comment provides: “In addition, a law yer

and client may agree that the repre sentation will be lim-

ited to providing assi stance out of court, including pro-

viding advice on t he operation of the court system and

drafting plead ings and responses. If the lawyer assis ts a

pro se litigant by draft ing any document to

be submitted to a cour t, the lawyer is not

obligated to sign the document.”

The comment further says the law yer

must write the followi ng on the document:

“Prepared with t he assistance of counsel”—

to avoid misleading the cour t into thinking

the client has not received any as sistance

from an attorney.

ABA Formal Opinion 07-4 46 also

approves of lawyers ghostw riting for cli-

ents, viewing it as a “ form of ‘unbundling’

of legal service s.” The ABA opinion reasons

that pro se clients receivi ng ghostwriting

services should not be requ ired to disclose

that fact: “Because t here is no reasonable

concern that a litigant appea ring pro se

will receive a n unfair benefi t from a tribu-

nal as a result of behi nd-the-scenes legal

assistance, t he nature or extent of such

assistance is i mmaterial and need not be

disclosed.”

“We conclude that there is no prohibi-

tion in the Model Rules of Professional

Conduct against undis closed assistance to

pro se litigants, as long as the law yer does

not do so in a manner that violates r ules

that otherwis e would apply to the lawyer’s conduct,” the

2007 ABA opinion says.

Tamara M. Kurtzma n, an attorney in Beverly Hills who

has writt en about ethical issues related to ghost writing,

says there is no consensus on how to deal w ith it.

“The lack of a clear and c onsistent position by courts

and bar associations i s one of the substantial challenges

facing the profession on this issue,” Kur tzman says. “For

example, bar associat ions have typically taken a more

favorable view of ghostwr iting than have the courts

themselves. Even among courts there a re di ering view-

points, with federal c ourts generally viewing ghost writ-

ing less favorably than state cou rts. Likewise, di erent

states have adopted di erent views on this issue.”

Some states require no di sclosure on the part of attor-

ney ghostwrit ers assisting pro se litigants. Some states

mandate disclosure , while other states sometimes require

such disclosure. For example, a 2006 ethic s opinion from

Nevada provides that “ghost-law yering” is unethical

unless the lawyer di scloses to the court their identity and

assistance t o the pro se client.

A 2008 North Carolina et hics opinion also follows the

approach of the ABA ethics opin ion and does not require

attorneys to dis close their identity or assistance to the

PHOTOGRAPH COURTESY OF ICE LEGAL

24 || ABA JOURNAL JUNE 2018

Ethics

“WE SEE IT AS

HELPING THE

ACCESS-TO-JUSTICE

PRO BLEM.”

—THOMAS ICE

Practice