Giving Up the Ghost: Alaska Bar Ethics Opinion 93-1 and Undisclosed Attorney Assistance Revisited

• Publication year: 2013

§ 30 Alaska L. Rev. 231. GIVING UP THE GHOST: ALASKA BAR ETHICS OPINION 93-1 AND UNDISCLOSED ATTORNEY ASSISTANCE REVISITED

Alaska Law Review
Volume 30, No. 2, December 2013
Cited: 30 Alaska L. Rev. 231

GIVING UP THE GHOST: ALASKA BAR ETHICS OPINION 93-1 AND UNDISCLOSED ATTORNEY ASSISTANCE REVISITED

Howard Burgoyne Rhodes ^[*]

ABSTRACT

Twenty years ago, the Alaska Bar Association adopted Ethics Opinion No. 93-1 which permitted attorneys to "ghostwrite" pleadings and provide other undisclosed services to pro se litigants. The goal of this ethical guidance was to enable attorneys to assist low-income individuals who could not otherwise afford representation. Ethics Opinion No. 93-1 construed "ghostwriting" broadly as an attorney's undisclosed assistance to a pro se client whether by providing legal advice or drafting pleadings or other documents. This Note argues that, despite the moral allure of its theoretical justifications, ghostwriting is unnecessary, provides little demonstrable benefit to pro se litigants, and potentially conceals the unethical practice of law. Ghostwriting may also confuse the interactions between judges and pro se litigants in a way that works against the pro se party's interests. Specifically, this Note argues that ghostwriting may cause judges to misapprehend pro se litigants' legal understanding and to withdraw prematurely the solicitude those judges are otherwise required to give. Therefore, the Alaska Bar Association should revise its guidance on ghostwriting to require attorneys providing unbundled services to append their Alaska Bar Number on their submissions. This requirement would discourage abuses, enable judges effectively to manage pro se litigants, and still permit experimentation in the unbundled legal market.

INTRODUCTION

For several decades, Alaska's bench and bar have debated how best to respond to the increasing number of individuals who represent themselves in court because they believe the services of a lawyer are unaffordable, unavailable, or undesirable. Pro se litigants present a number of challenges to state court systems: they frequently have difficulty managing procedural requirements and articulating their legal claims; they require judges and courthouse staff to instruct them on basic matters that lawyers handle with dispatch; and they often dropout of or fail unnecessarily in the pursuit of justice due to a lack of knowledge and appropriate resources, thus creating a massive pool of unmet legal needs. The increasing number of such litigants, therefore, raises a question: can courts and the legal profession devise a way to provide these citizens with effective "access to justice" while maintaining a neutral and efficient tribunal and upholding the values of the legal profession?

Twenty years ago, the Alaska Bar Association Ethics Committee led the State's effort to respond to this problem by issuing Opinion No. 93-1 ("Alaska Op. 93-1" or the "Opinion"). ^[1] Alaska Op. 93-1 permitted attorneys to "ghostwrite" the filings of pro se litigants under certain conditions as a means of enabling attorneys to assist low-income individuals who could not otherwise afford full representation. ^[2] The Opinion did not define "ghostwriting," but seemed to construe it broadly as an attorney's undisclosed assistance to a client who proceeds pro se, regardless of whether this assistance takes the form of writing pleadings or providing legal advice. ^[3] In either case, the attorney neither enters an appearance in the litigation nor signs the documents he helps to prepare. The Opinion operated under an implicit assumption that a lawyer's "ghostwriting" services to a pro se client would amount to less than traditional, full-service representation. ^[4] In this respect, Alaska Op. 93-1 anticipated by more than a decade the Alaska Supreme Court's adoption of a revised Rule 1.2(c) of the Alaska Rules of Professional Conduct ("ARPC"), which officially permitted Alaska attorneys to limit the scope of their representation of clients. ^[5]

Since 1993, Alaska has used a two-pronged approach to address the challenges of increased pro se litigation: (1) providing direct administrative assistance to such litigants, at least in the area of family law, and (2) formally encouraging attorneys to provide "unbundled" legal services that are more affordable for low-income clients. ^[6] The Alaska Court System provides direct assistance through its Family Law Self-Help Center ("FLSHC"), which supplies forms, instructions, and neutral administrative guidance. ^[7] The FLSHC also refers clients to the Alaska Bar Association's list of lawyers who provide unbundled legal services. ^[8]

The basic terms for providing unbundled services are set by ARCP Rule 1.2(c), which states that "[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client consents after consultation." ^[9] Lawyers who provide unbundled legal services modify the terms of the traditional attorney-client relationship with respect to litigation by creating a contract to complete discrete tasks for a client on a fee-for-service basis rather than charging a retainer fee for managing an entire case. ^[10] Such unbundled services purport to address problems of under-representation by providing limited services for limited cost, thus "servicing clients within their ability to pay." ^[11]

Unbundled services bear a clear-though controversial- relationship to the goal of providing greater legal support for low-income persons. What is less clear is why a state bar or court system should permit attorneys providing those services to do so from behind a veil of anonymity. The Alaska courts have never addressed ghostwriting, but federal courts that have opined on the issue have been almost uniformly critical of the practice. ^[12] Critics of ghostwriting suggest both that it is contrary to various rules of professional conduct and that it undermines some of the fundamental requirements of a self-regulating profession, such as transparency and responsibility.

This Note argues that the Alaska Bar Association should revise its guidance in Alaska Op. 93-1 to disentangle the ability of an attorney to provide unbundled services from the ethical license to remain anonymous. Specifically, this Note asserts that the Alaska Bar should amend its current guidance to require that any attorney-assisted filing be explicitly identified as such (e.g., by appending "Prepared with the Assistance of Counsel" along with the attorney's Alaska Bar number), though the attorney's name need not be disclosed. This would bring the Alaska Bar's ethical guidelines into conformity with the opinions of the Florida, ^[13] New Hampshire, ^[14] and New York City ^[15] bar associations. The recent action of the Florida Bar Association deserves special consideration because it is the only state bar to reverse its position on ghostwriting after holding an inquiry of county court judges in the state. ^[16]

In support of this view, this Note advances three main arguments: (1) a lawyer's ability to provide unbundled legal services to low-income clients-and thus, theoretically, increase "access to justice"-does not depend upon his ability to remain undisclosed; (2) ghostwriting has shown little demonstrable benefit to pro se litigants and may actually hinder a judge's ability to manage her obligations to pro se litigants effectively; and (3) ghostwriting's marginal benefits do not outweigh its potential costs to professional integrity.

I. ALASKA OP. 93-1, ACCESS TO JUSTICE, AND THE RISE OF PRO SE LITIGATION

The Alaska Bar Association's ethics opinions are initiated in response to inquiries from Alaska attorneys who confront novel or unclear ethical issues in their practices. ^[17] Alaska Op. 93-1 was drafted in response to an inquiry from a family law attorney who had a large number of low-income clients who needed professional assistance with child support modification motions and could not afford to retain counsel. ^[18] The attorney inquired whether it was ethical to provide this limited service without entering an appearance in the litigation. ^[19] Alaska Op. 93-1 does not indicate how much the attorney was paid for this service, nor whether the service was offered singly or as part of a menu of services from which the client could choose as the litigation progressed. ^[20] Nevertheless, the Alaska Bar Ethics Committee concluded that as long as an attorney clearly informed her client of the limitations and risks of limited legal services, and conducted herself in accordance with all the relevant standards of professional conduct, she need not disclose her role in preparing filings to the court. ^[21] The Alaska Bar Board of Governors adopted the opinion in March of 1993.

Alaska Op. 93-1 and the situation to which it responded were not, of course, conceived in a vacuum. Since the 1970s, the Alaska Bar, along with every other state bar in the country, has dealt with an increasing number of pro se litigants entering the court system. Studies from the 1990s note dramatic numbers of such litigants, especially in the context of family law. ^[22] More recent data from Anchorage courts handling family law cases indicate similar numbers. Since 2009, for example, 37 to 43% of the contested divorce and custody cases in Anchorage courts had two unrepresented parties. ^[23] In that same period, between 26 and 29% of these family law cases had only one represented...