Ghostwriting Papers for Pro Se Litigants Does Not Violate Ethical Rules — And Probably Not Rule 11

In re Liu, 2011 U.S. App. LEXIS 23326 (2d Cir. Nov. 22, 2011):

This Court's Committee on Attorney Admissions and Grievances ("the Committee") has recommended that Fengling Liu, an attorney admitted to the bar of this Court, be publicly reprimanded. ***

In its report, the Committee concluded that there was clear and convincing evidence that Liu had engaged in "conduct unbecoming a member of the bar" warranting the imposition of discipline. Report at 12 (quoting Fed. R. App. P. 46(c)). Specifically, the Committee found [numerous lapses, including] ... that Liu had: ... (7) violated her duty of candor by helping pro se petitioners draft and file petitions for review in this Court without disclosing her involvement to the Court (the "ghostwriting" charge). ***

II. Ghostwriting of Pro Se Pleadings

We adopt all of the Committee's findings except those pertaining to Liu's undisclosed ghostwriting of petitions for review. For the following reasons, we conclude that her ghostwriting did not constitute sanctionable misconduct.

Although there have been a number of recent cases in this Court in which a pro se party's pleadings were drafted, or appeared to have been drafted, by an attorney, this Court has not yet addressed the issue of attorney ghostwriting. However, 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. In Duran v. Carris, for example, the Tenth Circuit admonished an attorney for ghostwriting a pro se brief for his former client without acknowledging his participation by signing the brief. 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam). The court stated that the attorney's conduct had inappropriately afforded the former client the benefit of the liberal construction rule for pro se pleadings, had shielded the attorney from accountability for his actions, and conflicted with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions, and papers be signed by the party's attorney. See id. at 1271-72; see also, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (disapproving of members of bar "represent[ing] petitioners, informally or otherwise, and prepar[ing] briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar ... of representing to the court that there is good ground to support the assertions made"); Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro se Prisoners' Access to the Courts, 23 Geo. J. Legal Ethics 271, 285 and n.73 (2010) ("The federal courts have almost universally condemned [*6] ghostwriting." (collecting cases)).

Footnote 2. The ghostwriting issue has been more extensively discussed by the district courts, where the issue often involved more extensive drafting or representation than occurred in the present case. See, e.g., Delso v. Trs. for Ret. Plan For Hourly Emps. of Merck & Co., Civ. Action 04-3009, 2007 U.S. Dist. LEXIS 16643, 2007 WL 766349 at *12-18 (D. N.J. Mar. 5, 2007) (cross-motion for summary judgment); Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 885-87 (D. Kan. 1997) (opposition to motion to dismiss); Laremont-Lopez v. Se. Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1077 (E.D. Va. 1997) (civil complaints); Johnson v. Bd. of Cnty. Comm'rs, 868 F. Supp. 1226, 1231-32 (D. Colo. 1994) (motions and answer), aff'd in part and disapproved in part on other grounds, 85 F.3d 489, 492 n.3 (10th Cir. 1996); Klein v. Spear, Leeds & Kellogg, 309 F. Supp. 341, 342-43 (S.D.N.Y. 1970)("voluminous" papers responding to summary judgment motions).

On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting. The ethics committee opinions described in the following paragraphs are representative of the range of views on the subject and suggest a possible trend toward greater acceptance of various forms of ghostwriting.

A 1987 opinion of the New York City Bar's Committee on Professional and Judicial Ethics requires an attorney who drafts "any pleadings" for a pro se litigant, other than a "previously prepared form devised particularly for use by pro se litigants," to disclose that role to adverse counsel and the court, although the pleading need only note that it had been prepared by counsel without identifying the attorney. See Ass'n of the Bar of the City of New York, Comm. on Prof'l & Judicial Ethics, Op. 1987-2 (1987). A somewhat different conclusion was reached in a 1990 ethics opinion of the New York State Bar Association ("NYSBA") Committee on Professional Ethics, which permits attorneys to advise, and prepare pleadings for, pro se litigants, but only if: the attorney's name is disclosed to the court and opposing parties, the scope and consequences of the limited representation are disclosed to the client, and the attorney adequately investigates the pleadings and prepares them in good faith. See NYSBA Comm. on Prof'l Ethics, Op. 613 (1990). The NYSBA opinion disagreed with the New York City Bar's 1987 opinion to the extent that the latter opinion did not require disclosure of the attorney's name. See id.

In contrast to the authorities described above, a more recent opinion of the ABA's Standing Committee on Ethics and Professional Responsibility concluded that "[a] lawyer may provide legal assistance to litigants appearing before tribunals 'pro se' and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance." ABA Standing Comm. on Ethics & Prof'l Resp., Formal Op. 07-446, Undisclosed Legal Assistance to Pro Se Litigants (2007)(superseding ABA Comm. on Ethics & Prof'l Resp., Inf. Op. 1414). The ABA committee found that providing undisclosed legal assistance to pro se litigants constituted a form of limited representation, pursuant to ABA Model Rule of Professional Conduct 1.2(c), which states that "[a] lawyer may limit the scope of the representation [of a client] if the limitation is reasonable under the circumstances and the client gives informed consent." Id. at 1.

Regarding the benefit of liberal construction afforded to pro se pleadings, the ABA opinion stated that, "if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal" and, in any event, when a pleading is of higher quality, there will be no reason to apply liberal construction. Id. at 3. On the other hand, according to the ABA opinion, "[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage." Id. The opinion 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." Id.

Regarding the attorney's potential dishonesty in avoiding accountability for his representation, the ABA opinion explained that "[w]hether 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." Id. However, the opinion concluded that there is no such dishonesty as long as the client does not make an affirmative representation, attributable to the attorney, that the pleadings were prepared without an attorney's assistance. Id. at 4.

Similarly, in 2010, the Committee on Professional Ethics for the New York County Lawyers' Association ("NYCLA") concluded 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." NYCLA Comm. on Prof'l Ethics, Op. 742 at 1 (2010). The NYCLA committee stated that "[d]isclosure of the fact that a pleading or submission was prepared by counsel need only be made" when required by a rule, order, or statute, or when nondisclosure would constitute a misrepresentation. Id. In those instances, "unless required by the particular rule, order or circumstance mandating disclosure, the attorney need not reveal his or her identity and may instead indicate on the ghostwritten document that it was 'Prepared with the assistance of counsel admitted in New York.'" Id. In reaching these conclusions, the NYCLA committee found, inter alia, that ghostwritten pleadings would not be unfairly accorded liberal construction, id. at 4-5, or hamper the courts' ability to sanction frivolous behavior by the parties or counsel, id. at 5.

Footnote 3. For present purposes, we do not exhaustively survey the many court and ethics committee opinions addressing the ghostwriting issue. However, we note that, in contrast to the federal court precedents, a majority of state courts and state ethics committees are reportedly more open to undisclosed ghostwriting, although that majority might be described as slim. See Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts, 23 Geo. J. Legal Ethics 271, 286-88 (2010) (stating that, of twenty-four states that have addressed the issue, thirteen permit ghostwriting and, of those thirteen states, ten permit undisclosed ghostwriting while three require the pleading to indicate that it was prepared with the assistance of counsel; ten states expressly forbid ghostwriting).

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 filings will modify their opinion of that practice. See Robbins, supra, at 290 ("Almost all of the federal cases and state ethics opinions opposing ghostwriting were issued before the May 2007 ABA opinion. Because most states look to the ABA Model Rules when adopting and amending their own rules of professional conduct, the coming years may see a number of courts and states take a more relaxed stance on ghostwriting.") (internal footnote omitted); NYCLA Comm. on Prof'l Ethics, Op. 742 at 3 (noting "trend in favor of ghostwriting").

In the present case, the Committee concluded that Liu's undisclosed ghostwriting violated her duty of candor to the Court, contrary to the provision of the New York Lawyer's Code of Professional Responsibility barring her from "[e]ngag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation." N.Y. Lawyer's Code of Prof'l Resp. D.R. 1-102(A)(4) (effective through March 31, 2009); accord N.Y. Rules of Prof'l Conduct R. 8.4 (effective April 1, 2009). However, a determination that Liu violated D.R. 1-102(A)(4) would require, at the very least, a finding that she knew, or should have known, of either (a) an existing obligation to disclose her drafting of pleadings, or (b) even in the absence of such a general obligation, the possibility that nondisclosure in a particular case would mislead the court in some material fashion. See, e.g., In re Tavon, 66 A.D.3d 224, 230-31, 884 N.Y.S.2d 111 (2d Dep't 2009)(finding violation of D.R. 1-102(A)(4) where attorney held himself out as licensed at a time when "he knew or should have known" that his license had been suspended); In re Gruen, 55 A.D.3d 88, 90, 863 N.Y.S.2d 733 (2d Dep't 2008)(same, where attorney filed retainer and closing statements containing information that "he knew, or should have known," was incorrect); In re Stein, 189 A.D.2d 128, 130, 596 N.Y.S.2d 8 (1st Dep't 1993) (same, where attorney drafted checks "which he knew or should have known" would be dishonored).

In light of this Court's lack of any rule or precedent governing attorney ghostwriting, and the various authorities that 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.6 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. Under these circumstances, we conclude that Liu's ghostwriting did not constitute misconduct and therefore does not warrant the imposition of discipline.

Footnote 5. Rule 11 of the Federal Rules of Civil Procedure does not govern the situation, cf. Duran, 238 F.3d at 1271, since that rule applies only to district court proceedings, see Fed. R. Civ. P. 1, and requires the signature of the "attorney of record," Fed. R. Civ. P. 11(a), not a drafting attorney. See also Fed. R. Civ. P. 11(b)(specifying the representations that are made by an attorney when "presenting" a pleading to the court "whether by signing, filing, submitting, or later advocating it").

Footnote 6. Although Liu may have known, for example, that her ghostwritten pleadings might be accorded liberal construction, or that her ghostwriting might make it more difficult for the Court to police her behavior and for the parties and Court to determine whether an attorney or judge should be disqualified from participating in one of her cases, the ethics opinions permitting nondisclosure would have allowed a reasonable attorney to conclude that the ghostwriting now at issue was nonetheless immaterial.

Footnote 7. However, in light of the importance of the ghostwriting issue, and the fact that the effect of ghostwriting on disqualification issues is not discussed in the ethics opinions described in the text, we recommend to the Court that it consider the amendment of its rules to resolve the matter.

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