LAWYER-CLIENT RELATIONSHIP – attorneys do not necessarily engage in unethical conduct by writing filings for pro se litigants without court disclosure
The Second Circuit has ruled that attorneys may ghostwrite filings for pro se litigants to submit to the court without violating any current standards of conduct. An attorney did not act dishonestly and therefore is not subject to discipline for writing petitions for a pro se litigant without disclosing her involvement in the case to the court (In re Liu, 2d Cir., No. 09-90006-am, 11/22/11).
Noting conflicting authority on the issue, the court found persuasive a 2007 opinion by the ABA's Standing Committee on Ethics and Professional Responsibility, concluding that ghostwriting briefs and pleadings don’t inherently violate lawyer conduct rules.
The Committee on Attorney Admissions and Grievance for the Second Circuit recommended that attorney Fengling Liu be publicly reprimanded for instances including an assertion that Liu violated her duty of candor by not informing the court that she helped draft petitions that were filed by pro se litigants in the Second Circuit.
While issuing a public reprimand for other misconduct, the court decided that Liu did not commit sanctionable misconduct when she ghostwrote the petitions. The court announced three categories of ghostwriting: (1) where an attorney drafts a pleading and her involvement is not disclosed; (2) where the pro se litigant tells the court about the attorney's involvement, but not her identity, and (3) when the attorney's identity is disclosed, but she does not enter an appearance or sign the pleading.
The court noted that a number of federal courts “have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct.” However, “a number of bar association ethics committees have been more accepting of ghostwriting,” the Second Circuit said.
ABA Formal Ethics Opinion 07-446 (2007) notes “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.” Providing such service, the committee said, is a form of limited representation under Model Rule of Professional Conduct 1.2(c), which states: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
Opinion 07-446 continues “Whether it is dishonest for the lawyer to provide undisclosed assistance to a pro se litigant turns on whether the court would be misled by failure to disclose such assistance.” There is no dishonesty so long as the client does not make an affirmative representation, attributable to the attorney, that the pleadings were prepared without an attorney's assistance.
An earlier committee had concluded that Liu's ghostwriting violated her duty of candor to the court and thus ran afoul of DR 1-102(a)(4) of the former New York Code of Professional Responsibility, barring lawyers from engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation.”
The court said, however, that to violate DR 1-102(a)(4), Liu, at the very least, would have to have known, or should have known, “of either (a) an existing obligation to disclose her drafting of pleadings, or (b) even in the absence of such a general obligation, the possibility that nondisclosure in a particular case would mislead the court in material fashion.”
The court said that “In light of this Court's lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose participation to this court.” It concluded that “Liu's ghostwriting did not constitute misconduct and therefore does not warrant the imposition of discipline.”