Unbundled Legal Services:
Can the Unseen Hand be Sanctioned?
© 1998 Charles F. Luce, Jr.
All Rights Reserved Worldwide
One hot topic in legal ethics circles is the propriety of attorneys "ghost writing" pleadings for ostensibly pro se parties, i.e., in matters in which the attorney has not entered an appearance. The question has produced a handful of ethics opinions, some emotionally charged judicial commentary, and has attracted enough interest that it might some day be the subject of a specific Rule of Professional Conduct.
"Ghost writing" is, by its nature, a loaded term, suggesting the specter of unethical conduct. Certainly it was chastised as such in a fiery opinion by Judge John Kane, Johnson v. Board of County Commissioners, 868 F. Supp. 1226 (D. Colo. 1994), aff'd on other grounds, 85 F.3d 489 (10th Cir. 1996), the case which can be fairly credited for riveting the attention of Colorado litigators to the "ghost writing" issue. Kane's denouncement of a related issue -- partial representation of a client sued in multiple capacities -- tersely summarizes the anti-ghost writing viewpoint: "Whatever phantom is calling this tune, . . . , may not have it played in this court." 868 F. Supp. at 1230.
Depending upon your viewpoint, ghost writing is either an insidious and deceitful way for ostensibly pro se litigants to gain an unfair advantage and attorneys to shirk their duties as officers of the court, or a victory for consumers' rights, merely one aspect of another hot topic among legal ethicists, the so-called "unbundling of legal services."
The Case for Exorcising the Spectral Hand
Three principal arguments for prohibiting ghost-written pleadings are most frequently advanced: (1) Fed. R. Civ. P. 11(b) (or the state equivalent) provides that an attorney's signature constitutes a certification that the pleading is well-founded in fact and law and not interposed for any improper purpose; (2) Model Rule of Professional Conduct ("RPC") 8.4, whose several provisions generally prohibit dishonest or misleading conduct by attorneys; and (3) federal law, and the law of some states, requires that preferential treatment, principally in the form of lower standards, be given to pro se litigants by virtue of their unrepresented status. The fault with these general arguments against ghost writing, as well as with the arguments supporting the practice, is that the specific circumstances and consequences of each phantom pleading must be considered. As in most other matters of legal ethics, application of an uncompromising rule, applied in an uncritical manner, will yield unjust results frequently, and ethical results purely by accident.
The Rule 11 "hard liners" contend that it is unlawful and unethical for an attorney not to sign a pleading the attorney has substantially prepared. Rule 11 itself does not support this position; the rule provides that an attorney's signature is a certification, not that an attorney must sign every pleading he or she has had a hand in preparing. Moreover, there are situations in which an ethical attorney will be unwilling to sign any pleading because of consequences completely unrelated to Rule 11.
For example, in many, if not most, jurisdictions, entry of appearance is accomplished with the stroke of a pen; the signing of any pleading accomplishes the entry of appearance. See, e.g., D.C.COLO. LR 83.5(B); Colo. R. Civ. P. 121, § 1-1(1). Litigators are all too keenly aware that the courthouse door swings more easily inward than outward. Many jurisdictions, including Colorado, take the position that, once having entered an appearance, an attorney is duty-bound to see a matter through to conclusion. People v. Demarest, 801 P.2d 6, 7(Colo. App. 1990) ("We further recognize the general rule that counsel who undertakes to conduct an action impliedly stipulates that he will prosecute it to a conclusion.") (citing Riley v. District Court, 181 Colo. 90, 507 P.2d 464 (Colo.1973)). Accord People v. Ray, 801 P.2d 8, 9 (Colo. App. 1990); Anderson, Calder & Lembke v. District Court of Larimer County, 629 P.2d 603, 604-05 (Colo. 1981). Accordingly, it is not uncommon for an attorney's plea to withdraw from a case on the grounds that the client has ceased paying to fall upon deaf or unsympathetic judicial ears. While attorneys should not be allowed to "sign out" as easily as they can "sign into" a case, so long as the key to the courtroom exit is held by a potentially unsympathetic judge, those lawyers who have before found themselves caught in the Venus flytrap of the ease of entry of appearance will be naturally reluctant to sign any pleading if the client's ability to afford full representation is questionable.
Another common situation in which an attorney may be reluctant to sign on Rule 11's dotted line is when a potential plaintiff comes calling on the eve of the running of the statute of limitations. If the client has left no time for the attorney to verify facts, how can an ethical lawyer certify that he has conducted a reasonable investigation? Until such an investigation has been made, how can the attorney assess his or her willingness to enlist for the duration of the case? In such a situation, it is obvious that an attorney cognizant of Rule 11 must not sign the complaint. But it is a false Hobson's choice, and decidedly not in the interest of justice -- in any meaningful sense of the word -- to conclude that the attorney must either falsely certify the complaint under Rule 11 (a clear ethical violation), or permit the statute of limitations to run, depriving the client of a claim and exposing the attorney to a malpractice action on the theory that representation was undertaken negligently, or, more absurdly, that the lawyer should have undertaken representation.(1)
Another, thornier situation where legal services might be unbundled, are those instances in which insurance defense counsel has been retained by the insurer to provide defense only, even though there are meritorious counterclaims which might and ought to be stated if the insured were in a position to be able to afford full legal representation. If the client is unable to afford insurance counsel, who is already knowledgeable about the case, to provide full representation, the option of the insured to retain separate counsel to prosecute its counterclaims is illusory. Yet, at least in Judge Kane's courtroom, partial representation of the client may not be allowed. See Johnson, 868 F. Supp. at 1230-31.
In situations such as those described above, the alternatives are either no assistance of counsel or, provided the attorney is willing to unbundle legal services, limited assistance of counsel, which may not extend to the execution of pleadings or appearance in the case. In the author's opinion, the latter is plainly preferable to the former.
The Rule 11 hard liners who would not admit the existence of this possibility ignore not only the language of Rule 11 itself, but of the first rule of civil procedure, that all the rules "shall be construed and administered to secure the just, speedy and inexpensive determination of every action." Fed. R. Civ. P. 1 (emphasis added). While Rule 11 provides that an attorney's signature is a certification that the pleading is well-grounded in fact and law, the converse, that the absence of an attorney's signature is the hallmark of a spurious and frivolous pleading, is hogwash. Having debunked the hard line Rule 11 position, the RPC 8.4 argument must also fall; it is no more misleading or deceitful for an attorney to ghost write a meritorious pleading than it is proper for an attorney to sign a frivolous and groundless pleading. The real issue is not the presence or absence of a lawyer's signature, but the intended or reasonably foreseeable effect of the unseen assistance of counsel.
The third argument made in support of an anti-ghost writing rule -- that in federal courts and some jurisdictions pro se pleadings are treated more leniently -- is considerably stronger than the Rule 11 argument. This rule, rooted in the edict of the Supreme Court's decision in Haines v. Kerner, 404 U.S. 519, 520 (1972), was the foundation of Judge Kane's concern in Johnson, supra. Moreover, as litigators know, even in those jurisdictions whose black-letter law provides that pro se litigants are to be given no preferential treatment, the reality is that they frequently are. Even the most ardent disciple of stare decisis will, if not bend over backwards, at least incline some degree in that direction when dealing with a pro se litigant, if only in the interest of "bulletproofing" appellate review. Accordingly, if the spectral solicitor knows that a pleading regarding which he has provided substantial assistance will be used in a jurisdiction which either, as a matter of law or practice, favors pro se litigants, the attorney's hand, even if not identified, must be acknowledged to avoid a foreseeable unfair effect. This duty need not take the form of the attorney signing the pleading, but can be as effectively discharged by the attorney conspicuously indicating in the pleading, perhaps in the signature block, "prepared with the assistance of counsel," or words to similar effect. Numerous ethics bodies considering this issue have reached the same conclusion. See infra.
The Case for A Beetle Juice Barrister
In assailing the Rule 11 hard line position, the author does not suggest that the best representation is for an attorney to operate the levers of justice from behind a curtain like the Wizard of Oz, nor to appear only in cameo. Even simple litigation requires a myriad of daily decisions by someone trained and experienced in law. An attorney who is only partially engaged, figuratively and/or literally, is a danger to himself and to the client, and should so advise the client. Further, there is a substantial risk that the client and attorney may bargain for unbundled, limited assistance, only to have a court hold the attorney to a more encompassing duty should the lawyer-coached client's case go south. Although the Model Rules permit an attorney to limit the scope of representation, RPC 1.2(c), there is foreseeable and understandable judicial reluctance to "downsize" the standard of care. See generally, Cohen, Afraid of Ghosts, 83 A.B.A. J. 80 (Dec. 1997) (warning against the malpractice potential inherent in "sort of" representing a client). Agreeing to author, but not sign, pleadings undoubtedly creates an attorney-client relationship, and requires that the attorney fulfill all the duties normally owed to a client, even though the scope of representation is limited. The attorney must exercise caution that unseen assistance will not result in a fraud on the court or other litigants -- such as creating an illusion of pro se representation if the forum's rules require leniency be granted only to truly pro se parties -- for this would violate Rule 8.4's prohibition against directly or indirectly engaging in dishonest conduct. The attorney must also be mindful that the principal of unbundled legal services does not support the unauthorized practice of law; if it would be unlawful for an attorney to appear in a particular matter directly, it is no less unlawful for the attorney to "disappear." See Iowa Opinion 94-35 (May 23, 1995) (attorney-serviceman stationed, but not licensed, in Georgia, may not prepare pleadings for nonlawyers in Georgia).
However, some legal assistance is preferable to none at all, and if the client is unable to afford the complete panoply of the attorney's skills, it should not consequently be deprived of all of them. The authors of the Model Rules of Professional Conduct recognized this in adopting RPC 1.2(c): "A lawyer may limit the objectives of the representation if the client consents after consultation." This is not simply an issue of indigent representation; many attorneys could not themselves afford uninsured legal representation. If justice is to be practically available for all, if the litigation is not to become literally "the sport of kings," unbundling legal services must apply litigation services, too. See generally Colo. Bar Ass'n Opinion 101, Unbundled Legal Services (Jan. 17, 1998) (recognizing, but declining to address the issue of ghost writing).
Although the ethical rules implicated in the ghost writing debate are clear, no consensus has emerged regarding the ethical or legal propriety or procedure by which counselors may proffer a phantom pen.
The few published opinions express severe reservations regarding unbundled litigation services. Johnson, supra, concluded that the undisclosed assistance of counsel in drafting pleadings, "necessarily causes the court to apply the wrong tests in its decisional process and can very well produce unjust results," 868 F. Supp. at 1231, violates Rule 11, id., and is "ipso facto lacking in candor," id. at 1232 (citing RPC 1.2(d)). Laremont-Lopez, supra, held that ghost writing:
(1) unfairly exploits the Fourth Circuit's mandate that the pleadings of pro se parties be held to a less stringent standard than pleadings drafted by lawyers . . . , (2) effectively nullifies the certification requirement of Rule 11 . . . and (3) circumvents the withdrawal of appearance requirements of Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia [permitting withdrawal only by order of the court and after reasonable client notice].
986 F. Supp. at 1078 (citations omitted). Another court properly granted a motion to compel disclosure of whether "behind the scenes" legal assistance was being provided an ostensibly pro se party:
Plaintiff argues that she has a legal fight [sic] to proceed pro se, whether or not she is an attorney. She also argues against any "unlawful intrusion into privileged information." . . . The court has no quarrel or disagreement with these propositions. But they miss the point. The court does not propose to deny plaintiff the right to proceed pro se. Nor does it propose the invasion of privileged information. In this instance, however, plaintiff has sought to invoke the leniency of the court when she may not have a right to assert her pro se status for that purpose. Both the court and the parties, moreover, have a legitimate concern that an attorney who substantially participates in a case at least be identified and recognize the possibility that he or she may be required to enter appearance as counsel of record and thereby accept accountability for his or her participation, pursuant to Rule 11 and the rules of professional conduct applicable to attorneys. The grounds urged by plaintiff to deny the requested information do not trump the valid reasons for providing it on the record.
Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 887 (D. Kan. 1997) (citations omitted).
Ethics opinions have generally been more supportive of ghost writing as an unbundled legal service, though they have differed as to what kind of notice of legal assistance should be provided. See, e.g., Kentucky Bar Ass'n Opinion E-353 (Jan. 1991) (lawyer's name, but not signature, must appear on pleadings); N.Y. City Bar Ass'n Opinion 1987-2 (document must state "Prepared by Counsel," but attorney need not be identified); Iowa State Bar Ass'n Opinion 96-31 (1997) (proper for lawyer to prepare pro se pleadings provided court is informed of lawyer's identity); New York State Ethics Opinion 613 (1990) (reaching a similar conclusion). Other ethics bodies see no reason for any identification of legal assistance to appear. See, e.g., Maine Ethics Commission No. 89 (Aug. 31, 1988); Los Angeles County Bar Ass'n No. 483 (March 20, 1995); Alaska Bar Ass'n Ethics Committee No. 93-1 (March 19, 1993) (noting "that judges are usually able to discern when a pro se litigant has received the assistance of counsel in preparing or drafting pleadings"). See also Virginia Bar Ass'n Opinion 1127 (1988) (Virginia attorneys may assist pro se litigants in preparing pleadings, briefs and discovery requests without entering an appearance).
The value of unbundling litigation services for clients is self-apparent. The risk to attorneys who may find themselves held accountable for a larger duty than they thought was bargained for is only slightly less obvious. A bright-line rule regarding ghost writing is neither possible, nor desirable; careful consideration must be given to the circumstances of each case and the rules of each forum. Instead, the author suggests the following standard be used in assessing the ethics of adopting the nom de plume of one's client: if the intent or reasonably foreseeable effect of ghost writing is that the court or another party will be misled or that a pro se litigant will obtain an unfair advantage, the act of ghost writing, if not the identity of the spectral scrivener, must be made known. The court may always compel the pro se litigant to identify the assisting counsel, if it believes there is a need. If, on the other hand, no deceit or unfair advantage is either intended or reasonably likely to occur, the assisting lawyer's hand may remain unseen and unknown.
Whether such a standard will be adopted in Colorado remains to be seen. For now, those practicing in federal court would be wise to carefully consider Johnson, supra, and should at least insist that the pro se pleading indicate the assistance of counsel. However, the test proposed stands on solid footing, both as a matter of current ethics and social policy and, at least amongst bar ethicists, appears to be the "better rule."
1. The suggestion of one court, that the "better practice" in this scenario "would be for counsel to acknowledge draftsmanship of the complaint . . . by signing and filing it and simultaneously filing a motion to withdraw as counsel accompanied by an appropriate explanation and brief," Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1077 n.2 (E.D.Va 1977), assumes a benevolent and understanding judiciary, and trust that the motion to withdraw will be granted. Bad experiences have taught many litigators to not be so trusting. Moreover, the suggested motion to withdraw would be tantamount to an admission that the attorney had violated Rule 11.