Legal ghostwriting

Last updated

Legal ghostwriting is a form of unbundled legal services in the United States in which an attorney drafts a document on behalf of a client without formally appearing before the court. Instead, the client represents his or herself pro se.

Contents

Purpose

The growth of pro se litigants can be attributed to the high cost of litigation, anti-lawyer sentiment, and the advent of do-it-yourself law services. However, self-represented litigants may still need legal representation in order and to navigate the litigation process. [1]

Legal ghostwriting is one way in which clients can receive legal counsel while maintaining control of their case and avoiding higher legal costs. Attorneys offering legal ghostwriting services often charge a flat fee rather than billing by the hour as is typical for full-service attorneys. [2]

American Bar Association

The ABA formally endorsed the delivery of legal ghostwriting services by attorneys to pro se clients in 2007. [3] In a formal opinion, the ABA deemed the practice consistent with Rule 1.2(c) of the American Bar Association Model Rules of Professional Conduct which allows lawyers to unbundle their services to clients. According to the ABA opinion paper, lawyers should generally disclose the fact that papers were prepared by an attorney, but need not disclose their name of firm.

New York

The New York County Law Association agreed with the ABA approach to legal ghostwriting in a 2010 ethics opinion paper. In that decision, NYCLA found that “…it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel. Disclosure of the fact that a pleading or submission was prepared by counsel need only be made ‘where necessary.” [4]

The Second Circuit court in 2011 ruled that it was not improper for an attorney to ghostwrite legal pleadings on behalf of a self-represented litigant. [5]

Criticism

Ethical concerns may arise for attorneys offering legal ghostwriting services to clients. A common criticism of legal ghostwriting is that it gives the self-represented litigant an unfair advantage because judges often grant pro se litigants leeway in the courtroom to make up for their lack of experience. [6] [7] Critics argue that when clients employ an attorney ghostwriter, they should not be entitled to that privilege. [8] For this reason, the New York State Bar Association requires attorneys to disclose their assistance in papers submitted to the court. Attorneys are not, however, required to disclose their name or firm. [9]

Other critics are concerned that when an attorney provides legal ghostwriting services to a client without disclosing his or her name, the attorney might be misleading the court, or seeking to avoid malpractice lawsuits or court rules against frivolous lawsuits. [10]

However, the ABA in its 2007 opinion paper claimed that these ethical concerns were overstated. It concluded that:

"[b]ecause there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed. Similarly, we do not believe that nondisclosure of the fact of legal assistance is dishonest so as to be prohibited by Rule 8.4(c). 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. The lawyer is making no statement at all to the forum regarding the nature or scope of the representation, and indeed, may be obliged under Rules 1.210 and 1.611 not to reveal the fact of the representation. Absent an affirmative statement by the client, that can be attributed to the lawyer, that the documents were prepared without legal assistance, the lawyer has not been dishonest within the meaning of Rule 8.4(c). For the same reason, we reject the contention that a lawyer who does not appear in the action circumvents court rules requiring the assumption of responsibility for their pleadings. Such rules apply only if a lawyer signs the pleading and thereby makes an affirmative statement to the tribunal concerning the matter. Where a pro se litigant is assisted, no such duty is assumed. We conclude that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer’s conduct." [11]

See also

Related Research Articles

In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff(s) to a remedy. For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

Lawyer Practitioner of law

A lawyer or attorney is a person who practices law, as an advocate, attorney at law, barrister, barrister-at-law, bar-at-law, canonist, canon lawyer, civil law notary, counsel, counselor, solicitor, legal executive, or public servant preparing, interpreting and applying the law, but not as a paralegal or charter executive secretary. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across different legal jurisdictions.

Vexatious litigation is legal action which is brought solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.

In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, a growing number of legal document assistants (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by computer-assisted drafting libraries, where the clients are asked a series of questions that are posed by the software in order to construct the legal documents. In addition, regulatory consulting firms also provide advisory services on regulatory compliance that were traditionally provided exclusively by law firms.

A paralegal is a professional who performs tasks that require knowledge of legal concepts but not the full expertise of a lawyer. The market for paralegals is broad, including consultancies, companies that have legal departments or that perform legislation compliance activities in areas such as environment, labor, intellectual property and tax. Legal offices and public bodies also have many paralegals in support activities although they do not yet use the correct name of the profession.

A conflict of interest (COI) is a situation in which a person or organization is involved in multiple interests, financial or otherwise, and serving one interest could involve working against another. Typically, this relates to situations in which the personal interest of an individual or organization might adversely affect a duty owed to make decisions for the benefit of a third party.

Legal ethics are principles of conduct that members of the legal profession are expected to observe in their practice. They are an outgrowth of the development of the legal profession itself.

Legal outsourcing, also known as legal process outsourcing (LPO), refers to the practice of a law firm or corporation obtaining legal support services from an outside law firm or legal support services company. When the LPO provider is based in another country, the practice is called offshoring and involves the practice of outsourcing any activity except those where personal presence or contact is required, e.g. appearances in court and face-to-face negotiations. When the LPO provider is based in the same country, the practice of outsourcing includes agency work and other services requiring a physical presence, such as court appearances. This process is one of the incidents of the larger movement towards outsourcing. The most commonly offered services have been agency work, document review, legal research and writing, drafting of pleadings and briefs, and patent services.

Attorney misconduct is unethical or illegal conduct by an attorney. Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while neglecting to disclose prior law which might counter the argument, or having sex with a client.

The Washington State Bar Association (WSBA) operates under the delegated authority of the Washington Supreme Court to license the state's nearly 41,000 active and inactive lawyers and other legal professionals. In furtherance of its obligation to protect and serve the public, the WSBA both regulates lawyers and other legal professionals and serves its members as a professional association — all without public funding. The WSBA's mission is to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.

Especially in United States' usage, an attorney of record is any lawyer or barrister recognized by a court as representing a party to legal proceedings before it. Provided he or she is qualified to appear before the court in question, an attorney may become attorney of record for a party either by notifying the court of the attorney-client relationship, or by being so designated or appointed by the court.

Legal advertising is advertising by lawyers (attorneys), solicitors and law firms. Legal marketing is a broader term referring to advertising and other practices, including client relations, social media, and public relations.

A ghost lawyer is a lawyer who writes for other lawyers without assuming credit. Ghost lawyers often offer their services to other lawyers who need help on a project-by-project basis without wanting to take on a full associate. There are concerns about the ethics of ghost lawyers with regard to pro se litigants, but most states permit the practice.

Pro se legal representation comes from Latin pro se, meaning "for oneself" or "on behalf of themselves", which in modern law means to argue on one's own behalf in a legal proceeding as a defendant or plaintiff in civil cases or a defendant in criminal cases, rather than have counsel or an attorney do it for you.

A virtual law firm is a legal practice that does not have a brick-and-mortar office, but operates from the homes or satellite offices of its lawyers, usually delivering services to clients at a distance utilizing modern technology for communication. Most have a central function responsible for the accounting and administrative side of the practice. Virtual law firms are formed and regulated in the same way as traditional law firms, but their lawyers may be self-employed consultants rather than partners or employees.

Legal financing is the mechanism or process through which litigants can finance their litigation or other legal costs through a third party funding company.

The Buried Bodies Case, also known as the Lake Pleasant Bodies Case, is a mid-1970s upstate New York court case where defense attorneys Frank H. Armani and Francis Belge kept secret the location of the bodies of two women murdered by their client, Robert Garrow, Sr.

The American Bar Association's Model Rules of Professional Conduct (MRPC) are a set of rules and commentaries on the ethical and professional responsibilities of members of the legal profession in the United States. Although the MRPC generally is not binding law in and of itself, it is intended to be a model for state regulators of the legal profession to adopt, while leaving room for state-specific adaptations. All fifty states and the District of Columbia have adopted legal ethics rules based at least in part on the MRPC.

Unbundled legal services, also known as limited scope representation and discrete task representation, is a method of legal representation in which an attorney and client agree to limit the scope of the attorney’s involvement in a lawsuit or other legal action, leaving responsibility for those other aspects of the case to the client in order to save the client money and give them more control. Unbundled legal services, limited scope retainers or discrete task representation are available in multiple jurisdictions, including the United States, as well as the Canadian provinces of British Columbia and Ontario. One common use of unbundled legal services is family law, as a case is often too complex for a pro se litigant to handle alone but the cost of full-service legal representation is often prohibitive.

The Alaska Bar Association is a mandatory bar association responsible for the Alaska Supreme Court and for the admission and discipline process of attorneys for the state of Alaska.

References

  1. ↑ Goldschmidt, Jona (February 2002). "In Defense of Ghostwriting". Fordham Urban Law Journal.
  2. ↑ "Archived copy". Archived from the original on 2019-05-14. Retrieved 2022-07-11.{{cite web}}: CS1 maint: archived copy as title (link)
  3. ↑ Ethics and Professional Responsibility, Standing Committee on. "Formal Opinion 07-446" (PDF). Undisclosed Legal Assistance to Pro Se Litigants. American Bar Association. Archived from the original (PDF) on 27 September 2011. Retrieved 17 August 2011.
  4. ↑ Professional Ethics, Committee on. "Opinion 742" (PDF). NYCLA. Retrieved 17 August 2011.
  5. ↑ "Federal Court Rules that Incompetent Lawyering, but Not Legal Ghostwriting, Is Grounds for Sanctions". LegalGhostwriting Blog. 26 November 2011. Retrieved 28 November 2011.
  6. ↑ Haines v. Kerner, 404 U.S. 519, 520 (1972)
  7. ↑ ABA Model Code of Judicial Conduct, Rule 2.2, Comment [4] (adopted February 2007) (“It is not a violation of this Rule [requiring impartiality and fairness] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”)
  8. ↑ Goldschmidt, Jona (2002). "In Defense of Ghostwriting". Fordham Urban Law Journal: 1145, 1157–1158.
  9. ↑ Unified Court System, New York State. "Rule 1.2(c)" (PDF). Rules of Professional Conduct. Archived from the original (PDF) on 2 November 2012. Retrieved 15 August 2011.
  10. ↑ Klempner, Rochelle. "Unbundled Legal Services in Litigated Matters in New York State" (PDF). A Proposal To Test the Efficacy through Law School Clinics. Retrieved 15 August 2011.
  11. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 2011-09-27. Retrieved 2011-08-17.{{cite web}}: CS1 maint: archived copy as title (link)
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.