Unmasking the Ghost: Rectifying Ghostwriting and Limited-scope Representation With the Ethical and Procedural Rules

• Jurisdiction: United States,Federal
• Citation: Vol. 92
• Publication year: 2021

92 Nebraska L. Rev. 655. Unmasking the Ghost: Rectifying Ghostwriting and Limited-Scope Representation with the Ethical and Procedural Rules

Unmasking the Ghost: Rectifying Ghostwriting and Limited-Scope Representation with the Ethical and Procedural Rules

Halley Acklie Ostergard

TABLE OF CONTENTS

I. Introduction..........................................656

II. Background...........................................657
A. Ghostwriting and Limited-Scope Representation ...657
B. The Majority......................................659
1. Rule 11 Concerns..............................659
2. Liberal Pleading Concerns.....................661
3. Professional Responsibility.....................662
a. Candor to the Tribunal and Misrepresenation ..........................662
b. Terminating Representation ................663
C. The Minority......................................664

III.Analysis ..............................................666
A. The Unreality of the Majority Stance ..............666
B. The Inadequacies of In re Liu and ABA Formal Opinion 07-466....................................668
C. Rectifying the Contradictions Between the Precedents and the Rules ..........................670
1. The Reasons Behind the Contradictions ........670
2. Proposed Solutions to Remedy the Disconnect . .671
a. Eliminating Ghostwriting ..................672
b. Anonymous Disclosure .....................673
c. Mandating Disclosure and Amending Termination Rules .........................674

IV.Conclusion ............................................675

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I. INTRODUCTION

Pro se litigants-parties representing themselves without assistance of counsel-have steadily been on the increase since the late 1990s.(fn1) According to the Administrative Office of the United States, the number of civil pro se cases filed in U.S. district courts in fiscal year 2010 was 24,319, increased from 20,545 in fiscal year 2007.(fn2) One of the primary factors fueling the rise in pro se litigants is the prohibitive cost of full-service legal representation.(fn3) Unable to afford lawyers, these individuals face the choice of allowing their claims to lapse or representing themselves. The increased number of parties representing themselves has resulted in a number of challenges for the judiciary and the legal profession at large. In order to help pro se litigants, courts have adopted rules giving leniency to individuals representing themselves.(fn4) Meanwhile, lawyers adverse to pro se litigants experience added challenges when their opponents are unfamiliar with legal rules and procedures.(fn5)

Perhaps the greatest challenges resulting from the growth of pro se litigants have been the ethical and procedural concerns surrounding the practice of ghostwriting. Ghostwriting occurs when an attorney enters into limited representation for the sole purpose of anonymously drafting "particular pleadings or other court documents" for "clients who go on to represent themselves in court pro se."(fn6) While ghostwriting holds the potential to increase access to legal representation for low-income litigants, federal courts have almost universally condemned ghostwriting as a breach of an attorney's ethical and professional duties.(fn7) However, the Second Circuit's recent decision in In re

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Liu (fn8) rejected the notion that ghostwriting constituted sanctionable misconduct. The development of this circuit spilt on the issue of ghostwriting, as well as evolving trends in ethics opinions and professional rules of responsibility, presents a timely opportunity to revisit the ethical and procedural concerns surrounding ghostwriting.

This Note will examine the ethical and procedural concerns surrounding ghostwriting, as well as the justifications supporting its practice, in an effort to determine how courts should address ghostwriting. Part II will present the background of ghostwriting and the concerns raised by its practice. First, this Note will give a brief explanation of ghostwriting and its relation to the larger movement of unbundled legal services. Next, this Note will outline the current circuit court precedents on the issue of ghostwriting, focusing specifically on the ethical and procedural concerns raised by the practice. Part III will examine the shortcomings of both the majority stance against ghostwriting and the minority posture that ghostwriting is not at odds with ethical and procedural rules. This Note concludes that both the majority and minority positions on ghostwriting are flawed and that reform is necessary to resolve the discrepancies between ghostwriting as a part of limited-scope representation and the ethical and procedural obligations to which lawyers are bound. Ultimately, this Note proposes a solution that supports the best interests of the courts, lawyers, and pro se litigants by remedying the flaws of the majority and minority stances, as well as eliminating the current contradictions about ghostwriting caused by procedural and ethical rules.

II. BACKGROUND

A. Ghostwriting and Limited-Scope Representation

Ghostwriting is just one facet of a broader practice known as limited-scope representation, or unbundled legal services.(fn9) When most people think of legal representation, they have in mind traditional, full-service representation. In traditional, full-service legal representation, the attorney assists the client in the matter from start to finish, undertaking all of the different legal services necessary to bring about a resolution.(fn10) In limited-scope representation, however, a lawyer's representation of a client is confined to discrete legal tasks- such as legal research, fact gathering, negotiating, document drafting, or court representation-which the clients select to fit their budget

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and their needs.(fn11) In 2002, the American Bar Association (ABA) revised its Model Rules of Professional Conduct to permit limited-scope representation, as long as the representation is reasonable under the circumstances and the client gives informed consent.(fn12) To date, forty-one states have adopted this Model Rule, or a variation of it, permitting limited-scope representation in their jurisdiction.(fn13)

The main benefit of the limited-scope representation model of legal services is that providing legal services in this ?la carte manner allows many low- and moderate-income individuals access to legal representation that they would otherwise be unable to afford under the traditional model of full-scale representation.(fn14) National and state studies indicate that nearly eighty percent of low-income individuals in America have unmet legal needs.(fn15) Furthermore, without some legal assistance from a licensed attorney, many pro se litigants ultimately end up forfeiting their legal rights.(fn16) While unbundled legal services allow the client and the lawyer to limit the scope of the representation and services the lawyer is providing, the lawyer's ethical obligations and professional responsibilities remain unchanged.(fn17)

Courts have uniformly agreed that licensed attorneys do not violate procedural and ethical rules when giving legal assistance to fam

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ily and friends,(fn18) nor when giving minor undocumented assistance to a client.(fn19) Rather, in order to constitute ghostwriting, the attorney must provide substantial legal assistance to the pro se litigant without entering an appearance in the matter or otherwise identifying her involvement in the case.(fn20)

B. The Majority

The First and Tenth Circuit Courts of Appeal, along with district courts in the Third, Fourth, and Ninth Circuits, have condemned ghostwriting. These courts have cited concerns that ghostwriting constitutes a violation of procedural rules under the Federal Rules of Civil Procedure Rule 11 and ethics rules governing candor to the tribunal and misrepresentation.(fn21)

1. Rule 11 Concerns

Courts have almost universally expressed concerns that ghostwriting violates Rule 11. Federal Rules of Civil Procedure Rule 11 requires "every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name-or by a party personally if the party is unrepresented."(fn22) By presenting a signed document in court, the attorney or the pro se party, as the signer, certifies that to the best of her knowledge, the document is not being presented for an improper purpose, the claims presented are warranted by existing law, and the factual contentions have evidentiary support.(fn23) A court may impose sanctions on "any attorney, law firm, or party that violate[s] [Rule 11] or is responsible for the violation."(fn24)

The First Circuit decided the initial case addressing the issue of ghostwriting in Ellis v. Maine. (fn25) In dicta, the court condemned the growing number of petitions where "the petitioner appears pro se, asserts complete ignorance of the law, and then presents a brief which . . . was manifestly written by someone with legal knowledge."(fn26) The court cited Rule 11 in its disapproval of ghostwriting, explaining that lawyers who prepare such briefs and do not sign them "thus es

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cape the obligation imposed on members of the bar, typified by F.R.Civ.P. 11 [sic] . . . of representing to the court that there is good ground to support the assertions made."(fn27)

The Tenth Circuit also expressed concerns with the Rule 11 implications of...