In defense of ghostwriting.

• Author: Goldschmidt, Jona
• Position: Legal assistance to pro se litigants

INTRODUCTION

The increased presence of pro se litigants in the court has resulted in more interest in their plight and the challenges it poses for court administration. (1) The growth of pro se litigation is a sign of the times. It can be attributed to the high cost of litigation, anti-lawyer sentiment, and the advent of do-it-yourself law kits, books, and web sites. Increased literacy has certainly contributed to the increase in pro se litigation. Less appreciated is the increase in computer literacy. As educated people of modest means become computer literate, they increasingly take advantage of court web sites that make forms available, clinics that provide instruction on proceeding pro se, and pro se self-service centers.

This segment of the pro se population still needs legal assistance to make sure their legal papers are in order and to navigate the litigation process. They need more legal assistance than court staff or a pro se clinic instructor can provide. Many prospective pro se litigants seek assistance from either non-lawyer practitioners (whose practices are generally limited to filling in legal forms) or lawyers willing to provide "unbundled" legal services, such as reviewing client-drafted pleadings or ghostwriting papers that will be signed by the client and filed pro se.

This article analyzes the legal community's resistance to ghostwriting for pro se litigants. Part I examines the nature, extent, and benefits of ghostwriting. Part II analyzes objections to ghostwriting raised in case law and ethics opinions. Part III describes recent ghostwriting recommendations and regulatory developments. Part IV discusses the relevance of the duty of confidentiality and the attorney-client privilege to ghostwriting. Part V analyses the legal community's resistance to ghostwriting--placing it in the context of the legal profession, the adversary system, and resistance to other court reforms. The article concludes that ghostwriting serves a growing segment of the pro se population. The practice does not violate court rules or ethical principles, and does not threaten the courts' institutional interests. Indeed, the rules of confidentiality and the attorney-client privilege support ghostwriting by protecting the identity of counsel against compelled disclosure.

1. NATURE, EXTENT, AND BENEFITS OF GHOSTWRITING

   Limited, or unbundled services representation is an alternative to traditional full-service representation. Instead of entering a notice of appearance and representing the client in all aspects of the case, the lawyer only provides limited or discrete services. Typically, the client pays for the service at the time it is rendered rather than paying a lump sum retainer or being billed on a monthly basis. According to Forrest Mosten, the father of unbundled legal services, (2) limited representation can include advising the client, researching the law, drafting documents, and representing the client in court. (3) Limited services representation costs less and allows clients to stay in control of their cases.

   Unbundled legal services have always been available in transactional practice, but they are a new development in family law and civil litigation. One study reported a high degree of client satisfaction from unbundled legal services. (4)

   Mosten especially promotes unbundled services in family law cases:

   Often a party whose spouse has filed for a divorce simply needs to file an Answer.... Then the party will be able to negotiate with his or her spouse or the spouse's lawyer to resolve the issues of the case. Occasionally, the party may need more complex documents filed, such as Interrogatories, Requests for the Production of Documents, Requests for Admissions, and Motions. In each case, the party may desire to maintain control of their case but need the assistance of a lawyer to file the document properly. An attorney who offers unbundled legal services can help draft documents that the party can file. This way, the document will meet the court's standards, the party will protect legal rights, and the party can continue to negotiate without having to work through a lawyer. (5) According to Mosten, "Many self-representers can afford lawyers but do not want to use them because they do not want to spend the money, are afraid of losing control over their own lives, or believe that lawyers would actually add to their problems." (6)

   No one has systematically collected data on the frequency of ghost writing but judging by the articles, conferences, cases, and ethics opinions on the subject, it appears to have taken hold of the legal community, if not the pro se population itself.

2. ANALYSIS OF OBJECTIONS TO GHOSTWRITING

   In the few cases that address ghostwriting, courts often conclude that the practice violates ethical responsibilities, rule requirements, obligations to opposing parties, duties of attorneys as court officers, and principles of fairness. Indeed, ghostwriting is often considered contemptuous or otherwise sanctionable conduct. (7) The courts have thrown the book at ghostwriters, and the practice has therefore been chilled. This section addresses the dominant rationales for opposing ghostwriting.

   1. The Undue Advantage Argument

      A review of the case law indicates that the primary objection to ghostwriting is that it gives pro se litigants an undue advantage over their represented adversaries. In Johnson v. Board of County Commissioners, (8) the most oft-cited case, the pro se defendant was a former county sheriff sued for sexual harassment and civil rights violations. The Johnson court indicated its displeasure with the fact that an attorney ghostwrote the defendant's motions for an extension of time while he sought counsel to represent him. (9) Noting that ghostwriting was "arising with increasing frequency," (10) the court gave the undue advantage rationale for prohibiting ghostwritten filings:

      It is elementary that pleadings filed pro se are to be interpreted liberally. [The defendant's] pleadings seemingly filed pro se but drafted by an attorney would give him the unwarranted advantage of having a liberal pleading standard applied whilst holding the plaintiffs to a more demanding scrutiny. Moreover, such undisclosed participation by a lawyer that permits a litigant falsely to appear as being without professional assistance would permeate the proceedings. The pro se litigant would be granted greater latitude as a matter of judicial discretion in hearings and trials. The entire process would be skewed to the distinct disadvantage of the nonoffending party. (11) The Johnson court cited no specific harm or actual undue advantage that resulted from the filing of the ghostwritten papers. Nevertheless, according to the court,

      having a litigant appear to be pro se, when in truth an attorney is authoring pleadings and necessarily guiding the course of the litigation with an unseen hand is ingenuous to say the least; it is far below the level of candor which must be met by members of the bar. (12) The "unseen hand" (13) language in Johnson and other terms demonizing the ghostwriting attorney (14) are found in most cases on the subject. (15)

      The unfair advantage argument assumes that since pro se litigants are ill-equipped to prosecute their claims because full representation is unavailable or undesired, there is no reason to provide them with any legal services. Such a sweeping generalization may be true for some complex actions that no lay litigant could prosecute. But, in garden-variety civil and family cases, many persons of ordinary intelligence can navigate the system with forms and pro se assistance programs provided by state courts. Since the level of court users' general and computer literacy is rising, and since, increasing numbers of litigants are taking advantage of this assistance, federal courts may soon adopt similar programs.

      The Johnson court cited three cases to support its ruling that ghostwritten papers are improper. One of them, Klein v. Spear, Leeds & Kellogg (16) (Klein I), was perhaps the earliest anti-ghostwriting case. Klein I involved a pro se plaintiff whom the court described as "an habitual litigant who in the past five or six years [had] commenced well over thirty lawsuits against a very large number of defendants." (17) The court's description of ghostwriting was condemnatory:

      An unverified statement brought to our attention is to the effect that an attorney (or attorneys) have been and still are, actively assisting [the plaintiff] with legal advice ... by drawing up the papers before us now as well as those submitted on the prior motion. They are quite voluminous and by reason of their legal content and phraseology most strongly suggest that they emanate from a legal mind. If this be true, it should not be countenanced. It is one thing to give some free legal advice (incidentally, plaintiff is apparently not indigent); quite another to participate so extensively and not reveal one's identity. If this is the case, we see no good or sufficient reason for depriving the opposition and the Court of the identity of the legal representatives involved so that we can proceed properly and with the relative assistance that comes from dealing in the open. Besides, where it is unnecessary we should not be asked to add the extra strain to our labours in order to make certain that the pro se party is fully protected in his rights. Most importantly, this unrevealed support in the background enables an attorney to launch an attack against another member of the Bar (as was done by this same plaintiff), without showing his face. This smacks of the gross unfairness that characterizes hit-and-run tactics. If this is the situation here, we vigorously condemn it. (18) The foregoing comments are noteworthy for several reasons. First, the court was not dealing with the typical pro se litigant of today, most often found in family court. Rather, the court was confronting a rarer kind of...