'Ghostwriting' Lawyer Effaced From ERISA Case on Ethics Grounds by Charles Toutant, New Jersey Law Journal, March 21, 2007 is online here at Law.com.
Ghostwriting pleadings for a pro se litigant violates a lawyer's ethical duty of candor to the court and may amount to a violation of federal court rules, a U.S. magistrate judge holds in a case of first impression in New Jersey.
U.S. Magistrate Judge Tonianne Bongiovanni barred a lawyer from informally assisting a widow in her ERISA suit against Merck & Co.'s pension program, finding "undisclosed ghostwriting is not permissible under the current form of the [Rules of Professional Conduct] in New Jersey."
The opinion, in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co. Inc., 04-3009, offers guidance for attorneys who offer "unbundled" services, by which a lawyer performs succinct legal tasks but does not provide traditional full-service representation.
Bongiovanni said the practice -- which proponents say increases access to justice for the poor and promotes efficiency in pro se matters -- has created an ethical conundrum, since the Rules of Professional Conduct
have not been revised to deal with limited representation.
For the life of me, I cannot understand the problem. Lawyers hire others to write briefs; the more talented writers and researchers such as the "goddess" Laura Morgan write briefs and memoranda for attorneys frequently. Many other lawyers do contract work for other lawyers. Why do we make it so difficult for those most in need of legal services and the least able to pay? As courts face the barrage of pro se litigants, I hope this course changes. Soon.LATEST UPDATE: See Alan Childress' post at Legal Profession Blog for the latest.
UPDATE - COMMENTS:
Diana - The situations you reference in the last paragraph of your entry are all about lawyers working for other lawyers who are representing the client. But the opinion is about a lawyer secretly helping a woman who is representing herself. I think the judge's reasoning as set out in the NJ Law journal is good, including "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help."
The judge, however, went on to equate "ghostwriting" with unbundled services, and I do not think they are the same. This story from the AP http://www.law.com/jsp/article.jsp?id=1167818525221
dated Jan. 4, 2007, talks about how some states are formally allowing lawyers to offer unbundled services. "A decade ago, that would have been impossible. But starting in 1999 with Colorado, states began adopting rules allowing lawyers to provide a menu of limited legal services to people who can't afford an attorney from soup to nuts. Maine, New Hampshire, California and Florida are among them, and most other states are considering such rules."
See also this list: http://www.unbundledlaw.org/States/states.htm
Marcia J. Oddi
The Indiana Law Blog
Posted by: Marcia Oddi | March 22, 2007 at 09:52 PM
I sent the ghostwriter the following message:
"Thank you for providing that woman assistance. I believe it was ethically and morally the right thing to do. I hope you appeal any adverse rulings."
Posted by: Barry McCarthy | March 22, 2007 at 08:53 PM
Well, as I see it, a problem is when one party is paying for representation and the other party is not paying or is lawyer shopping.
In that case, the "ghostwritten" party can generate excessive legal bills for the other "represented" party and require the represented party to defend him/her/itself from endless ghost attacks.
Additionally, a naive, unknowing and/or uninformed individual might not understand that threats and promises from a ghostwriter do not carry the same weight as legal counsel who have entered an appearance.
Finally, it seems to me a ghostwriter does not place his/her credentials/license on the line and may choose to bow out of a matter whenever s/he chooses.
So, if the matter gets really messy/involved/out-of-control and the ghostwriter drops the matter, then the pro se is left high and dry - possibly/probably unable to find other counsel to take it over. Thus, the ghostwriter damages or worsen the pro se's situation.
And, of course, there's the represented client's counsel who can't just withdraw from the matter. That lawyer is left possibly holding a bag of snakes after the ghostwriter just walks out.
Posted by: Jim | March 22, 2007 at 12:18 PM
Diana - The situations you reference in the last paragraph of your entry are all about lawyers working for other lawyers who are representing the client. But the opinion is about a lawyer secretly helping a woman who is representing herself. I think the judge's reasoning as set out in the NJ Law journal is good, including "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help."
The judge, however, went on to equate "ghostwriting" with unbundled services, and I do not think they are the same. This story from the AP http://www.law.com/jsp/article.jsp?id=1167818525221
dated Jan. 4, 2007, talks about how some states are formally allowing lawyers to offer unbundled services. "A decade ago, that would have been impossible. But starting in 1999 with Colorado, states began adopting rules allowing lawyers to provide a menu of limited legal services to people who can't afford an attorney from soup to nuts. Maine, New Hampshire, California and Florida are among them, and most other states are considering such rules."
See also this list: http://www.unbundledlaw.org/States/states.htm
Marcia J. Oddi
The Indiana Law Blog
Posted by: Marcia Oddi | March 22, 2007 at 09:52 PM
I sent the ghostwriter the following message:
"Thank you for providing that woman assistance. I believe it was ethically and morally the right thing to do. I hope you appeal any adverse rulings."
Posted by: Barry McCarthy | March 22, 2007 at 08:53 PM
Well, as I see it, a problem is when one party is paying for representation and the other party is not paying or is lawyer shopping.
In that case, the "ghostwritten" party can generate excessive legal bills for the other "represented" party and require the represented party to defend him/her/itself from endless ghost attacks.
Additionally, a naive, unknowing and/or uninformed individual might not understand that threats and promises from a ghostwriter do not carry the same weight as legal counsel who have entered an appearance.
Finally, it seems to me a ghostwriter does not place his/her credentials/license on the line and may choose to bow out of a matter whenever s/he chooses.
So, if the matter gets really messy/involved/out-of-control and the ghostwriter drops the matter, then the pro se is left high and dry - possibly/probably unable to find other counsel to take it over. Thus, the ghostwriter damages or worsen the pro se's situation.
And, of course, there's the represented client's counsel who can't just withdraw from the matter. That lawyer is left possibly holding a bag of snakes after the ghostwriter just walks out.
Posted by: Jim | March 22, 2007 at 12:18 PM