Ethics Opinions

Opinion No. 98-1

Summary: An attorney may provide limited background advice and counseling to pro se litigants. However, providing more extensive services, such as drafting ("ghostwriting") litigation documents, especially pleadings, would usually be misleading to the court and other parties, and therefore would be prohibited.

Facts: A lawyer inquires about "unbundling" or "discrete task representation," particularly by using an agreement under which the client contracts for specific legal services that the lawyer will perform while the client represents herself pro se in the litigation.

Discussion: The Committee believes that limited-scope arrangements between attorney and client may offer real benefits to the poor and disadvantaged, but it has concerns about substantial and undisclosed involvement by attorneys in cases where the client is acting pro se. Under Rule 1.2(c) of the Rules of Professional Conduct, "A lawyer may limit the objectives of the representation if the client consents after consultation."1 While many of the services that the lawyer proposes to provide involve only background advice and counseling, which seem appropriate, other services may involve the drafting of litigation documents or significant ongoing participation in the conduct of litigation. These latter services are problematic. There is a growing body of authority that raises serious objections when attorneys "ghostwrite" documents, especially pleadings. Because pro se pleadings have been held to "less stringent standards" (see. e.g., Haines V. Kerner, 404 US 520, 520 (1971)), attorney ghostwriting has been viewed as, consciously or not, an attempt to gain an unfair advantage, a possible violation of obligations under Rule 3.3,2, Candor Toward the Tribunal, and Rule 4.1,3, Truthfulness in Statements to Others. (See also Fed. R. Civ. Proc.11.4)

Similar concerns were expressed by the ABA's Committee on Ethics and Professional Responsibility in ABA Informal Op. 1414(1978). It advised that a lawyer who gave a litigant "active and rather extensive assistance" in preparing documents submitted to the court, which was undisclosed until he "sat in on" the trial ostensibly conducted pro se, was "involved in the litigant's misrepresentation contrary to DR-102(A)(4)..."5 (See Rule 3.3 and 4.1 supra.) Federal cases coming to that conclusion in the context of pleadings are Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir.1971) (relying on Rule 11, "If a brief is prepared in any substantial part by a member of the bar, it must be signed by him."); Johnson v. Board of County Commissioners, County of Fremont, 868 F.Supp 1226, 1232 (D.Colo.1994) (same); Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F.Supp 1075, 1078 (E.D.Va.1997) (ghostwritten pleadings have "the perverse effect of skewing the playing field rather than leveling it").

By indirectly misleading the court and other parties, the attorney might also be violating Rule 8.4 (misconduct to (a) "violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another," and/or (d) "engage in conduct that is prejudicial to the administration of justice"). In a somewhat analogous situation, this Committee in opinion 82-8 discussed the predecessor to Rule 8.4(a) (DR1-102(A)(2)) and concluded that a lawyer should not permit his client to send a settlement proposal representing the lawyer's work directly to the adverse party, thereby circumventing the obligation not to communicate with a party represented by counsel (now Rule 4.2). Similarly, significant, ongoing behind-the-scenes representation runs a risk of circumventing the whole panoply of ethical restraints that would be binding upon the attorney if she was visible. More generally, ABA Op. 1414, supra, stated, and we concur, that "the determination of the propriety of such a lawyer's actions will depend upon the particular facts involved and the extent of a lawyer's participation on behalf of a litigant who appears to the Court and other counsel as being without professional representation."

Footnotes

1 The Comments to 1.2 clarify that "[4] The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may be for a specifically defined purpose.... [5] An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law ..." See, for example, Comment [5] to Rule 1.2, stating that "the client must not be asked to agree to representation so limited in scope as to violate Rule 1.1 [lawyer shall provide competent representation]...."

2 Rule 3.3(a): ".... shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client...."

3 Rule 4.1 Truthfulness in Statements to Others: "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when.... necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6."

4 Fed.R.Civ.P. 11: Pleadings "shall be signed by at least one attorney of record.... or, if the party is not represented by an attorney, shall be signed by the party.... By presenting to the court.... a pleading.... or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge.... it is.... being presented [in good faith]." Similarly, see MassR.Civ.P. 11 and MRPC 3.1, Meritorious Claims and Contentions: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous...."

5 DR1-102(4) is now Rule 8.4(c) (misconduct to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."


Permission to publish granted by the Board of Delegates on May 29, 1998. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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