Commercial Litigation and Arbitration

Ghostwriting as Ethical / Rule 11 Violation

An attorney assisted the pro se plaintiff in Delso v Trustees for the Retirement Plan for Hourly Employees of Merck & Co., 2007 U.S. Dist. LEXIS 16643 (D.N.J. March 5, 2007) by ghostwriting certain court papers for her. The defendant contended that this was unethical under the New Jersey Rules of Professional Conduct. Magistrate Judge Tonianne Bongiovanni agreed, holding:

1. Ghostwriting gives a pro se litigant an undue advantage because of the latitude extended by courts to those appearing pro se. ‛[W]hen pleadings drafted by attorneys are filed bearing the signature of a plaintiff outwardly proceeding pro se, the indulgence extended to the pro se party has the perverse effect of skewing the playing field rather than leveling it“ (quotation and citation omitted).

2. Ghostwriting violates the ethical duty of candor to the Court.

3. Ghostwriting violations Federal Rule of Civil Procedure 11.

Held, attorney barred from providing any further informal assistance to pro se litigant, and must instead choose whether to enter an appearance and represent her formally. Notable quote:

‛[T]he Code of Professional Responsibility is not designed for Holmes proverbial 'bad man' who wants to know just how many corners he may cut, how close to the line he may play, without running into trouble with the law. Rather, it is drawn for the 'good man' as a beacon to assist him in navigating an ethical course through the sometimes murky waters of professional conduct“ (quoting Reardon v. Maralyne, Inc., 83 N.J. 460, 469 (1980) (quoting in turn General Motors Corp. v. City of New York, 501 F.2d 639, 649 (2d Cir. 1974)).

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