Focus on Ethics & Civility
| Publication year | 2013 |
| Pages | 24 |
| Citation | Vol. 26 No. 6 Pg. 24 |
November, 2013
A GHOST STORY
Keith A. Call.
"Lawyers, including those acting with anonymity, should at least have a reasonable professional opinion that the cause of action or legal argument has a basis in law and fact..."
I have ghosts in my house. They leave empty jugs of milk in the fridge, clog toilets, leave open bags of hot dogs under beds, and have lost, eaten, or ruined thousands of billable hours worth of household goods. I have examined and cross-examined my children, but none of them ever has any knowledge about these mysteries. So we have concluded it has to be ghosts. Of course, no one has ever been able to summon these ghosts, so they always escape liability. Cf. United States ex rel. Mayo v. Satan & His Staff 54 F.R.D. 282 (WD. Pa. 1971) (dismissing civil rights action against Satan and his servants for lack of personal jurisdiction and failure to provide instructions for service of process).
There is great power in anonymity. Throw a sheet over your head, cut out a couple of eye holes, and you can get away with all sorts of mischief Or, just do it while nobody's looking.
Like ghostwriting someone else's pleading or brief.
But do Utah rules allow attorneys to hide under a white sheet? More specifically, is ghostwriting for a pro se client allowed? If it is, are there any boundaries? Let's briefly examine the rules.
Utah's Approach to Ghostwriting
According to the Utah Ethics Advisory Opinion Committee, ghosts are allowed in Utah courthouses.
Under the Utah Rules of Professional Conduct, and in the absence of an express rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.
Utah State Bar Ethics Advisory Op. 08-01, ¶ 2 (Apr. 8, 2008). Proponents of this rule have suggested that ghostwriting promotes access to the courts for middle and lower income litigants.
But lawyer ghosts must still follow the rules of ethics. See id. (" [P]roviding limited legal help does not alter the attorney's professional responsibilities."). For example, attorneys must obtain informed consent for unbundled services, and any limitation on the scope of representation must be reasonable. Id. ¶¶ 30-31. Moreover, the duty of competency still applies. Even if the...
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