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

Article excerpt

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 mé 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. …