AN ANALYSIS OF GHOSTWRITING DECISIONS: Still Searching for the Elusive Harm

By Goldschmidt, Jona | Judicature, September/October 2011 | Go to article overview
Save to active project

AN ANALYSIS OF GHOSTWRITING DECISIONS: Still Searching for the Elusive Harm

Goldschmidt, Jona, Judicature

Ghostwriting should be recognized as a legitimate means of providing limited legal representation to those unable to afford full representation in order to provide them access to justice.

You're an attorney - or maybe even a judge - and people you know, often family members and close friends, frequently ask you for "just a little" legal advice or assistance. You are aware that, if you provide it, an attorney-client relationship arises with all of its attendant legal and ethical obligations. But you have no intention of getting involved in the dispute on a fullrepresentation basis. This can be for any one of a number of reasons, such as the client's lack of funds to pay you for full representation, your lack of time, reluctance to represent family members, ór the knowledge that putting your name on a pleading (especially a complaint) means you have entered an appearance; this would mean being at the mercy of the court with respect to withdrawal. You explain these things to the client, who states she understands why you wouldn't want to get fully involved. You then listen to the facts presented, willing to make a recommendation.

As it turns out, you recognize a potential cause of action or right to relief (or you recognize a valid defense). You recommend that the Client file a complaint (or responsive pleading) in small claims or perhaps a general jurisdiction court. Naturally, the client asks if you wouldn't mind roughing out the necessary contents of such a document, so she can file it or something similar. On a paper napkin during your lunch meeting you rough out a draft, or maybe just write the elements of die relevant cause (s) of action if you know them. You tell your client, "Good luck on it, and keep posted. I wish I could do more." The client later submits the document you roughed out or prepared, but, respecting your wishes, she omits any reference to your identity or the fact of your assistance on the document filed.

You are a ghostwriter.1 You have acted, according to established federal jurisprudence, unethically and illegally, and are subject to sanctions. This may strike some people as odd, inasmuch as undisclosed ghostwriting of speeches, books, and other kinds of writings by someone - usually with better writing skills or expertise - for another person is a widespread practice. No one seriously questions the need for undisclosed ghostwriting in these contexts. Yet, when lawyers provide the same service to self-represented litigants (SRLs) they are accused of rule violations and ethical breaches.

What makes it a serious issue is that those being assisted might otherwise not have access to justice, or would have a much more difficult time navigating the legal system without the ghostwriting assistance. While no data are available, it is fair to say that most ghostwriting lawyers do so as a service (paid or pro bono) to SRLs who simply cannot afford their fees for full representation. In some cases, they may even engage in ghostwriting to save a cause Of action from an impending statute of limitations. Even when there is no evidence that the ghostwritten document was filed pro se for some improper purpose, there should be no presumption that undisclosed ghostwriting is a per se rule or ethics violation, as many federal Courts have held.2

Along with services such as explaining law and legal procedures, coaching the SRL during negotiations, or consulting regarding a litigation strategy, access to justice advocates include ghostwriting as one of the various possible "unbundled" ór discrete legal services that lawyers could provide short of full representation. However, due to historic objections to the practice by federal courts, lawyers are wary of providing ghostwriting services. As explained below, federal courts have continued to view ghostwriting as improper, while recent ethics opinions have reached contrary results, finding that it does not violate ethics principles.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

AN ANALYSIS OF GHOSTWRITING DECISIONS: Still Searching for the Elusive Harm


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?