Wednesday, November 23, 2011

Ghostwriters in the sky

The general view is that lawyers cannot ghostwrite legal pleadings and other documents for pro se litigants. That's because courts give pro se parties the benefit of the doubt in drafting inartful documents, and they will benefit from that leniency even if a lawyer is helping out behind the scenes. The Court of Appeals is now saying that lawyers who ghostwrite pro se documents are not violating the professional responsibility rules.

The case is In Re Liu, an attorney disciplinary action decided on November 22. This immigration lawyer was disciplined by the Second Circuit for various screw-ups. But the Second Circuit decided that counsel should not be sanctioned for helping to draft documents behind the scenes for pro se litigants.

District courts have been on the lookout for ghostwriters. Recently, one judge in the SDNY suspected that a lawyer was actually drafting the papers for a pro se litigant. The judge said, "The court remains convinced that plaintiff has had the assistance of an attorney in preparing the exceptionally detailed and very lawyerly pleading — utterly atypical of a pro se pleading — that is the subject of this motion. The original complaint also bore the hallmarks of a hidden attorney. If the court ever learns the identity of this attorney he  or she will be reported to the relevant Departmental Disciplinary Committee and to the Grievance Committee of this Court." Ochei v. Mary Manning Walsh Nursing Home Co., 2011 U.S. Dist. LEXIS 20542, 20-21 (S.D.N.Y. Mar. 1, 2011)

Looking at this issue afresh, the Court of Appeals (Calabresi, Wesley and Sack) notes that "a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. ... On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting." Some bar associations require the ghostwriting attorney to disclose his role to the court and opposing counsel. Others say that the pro se litigant will not get the benefit of the doubt in these circumstances because her papers will read more professionally. The Second Circuit thus observes, "in light of the ABA's 2007 ethics opinion, and the other recent ethics opinions permitting various forms of ghostwriting, it is possible that the courts and bars that previously disapproved of attorney ghostwriting of pro se filing will modify their opinion of that practice."

The attorney at issue in this misconduct proceeding will not be sanctioned for ghostwriting. The Court of Appeals defers to the experts in this area and suggests that the man behind the curtain can draft legal papers for unrepresented parties without any fear of discipline.

Under these circumstances, we conclude that Liu’s ghostwriting did not constitute misconduct and therefore permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court. We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith. The petitions for review now at issue were fairly simple and unlikely to have caused any confusion or prejudice. Additionally, there is no indication that Liu sought, or was aware that she might obtain, any unfair advantage through her ghostwriting. Finally, Liu’s motive in preparing the petitions – to preserve the petitioners’ right of review by satisfying the thirty-day jurisdictional deadline – demonstrated concern for her clients rather than a desire to mislead this Court or opposing parties.

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