LEO 1874:  LIMITED SCOPE REPRESENTATION—REVIEWING PLEADINGS
FOR PRO SE LITIGANTS—SUBSTANTIAL ASSISTANCE AND “GHOSTWRITING”

Law Firm has contracted with a pre-paid legal services plan (“Plan”) to review and comment to Plan Members on certain documents submitted to Law Firm by Plan Members.  “Plan Members” or “Members” are persons who contract with the Plan for access to services provided by Law Firm.  Law Firm is compensated by the Plan for this document review service (and a wide range of other designated services) on a membership per capita basis.1 In addition to the services designated for payment on a membership per capita basis, the Plan allows a Member to request certain other legal services by the Law Firm, including representation before tribunals, on a discounted hourly fee-for-service basis in which the fee is paid by the Member to the Law Firm.

A Member requests Law Firm to review and provide legal advice on a Warrant In Debt with a Bill of Particulars that the Member has prepared for pro se filing in a General District Court and a petition for a change of custody that the Member has prepared for filing pro se in a Juvenile and Domestic Relations District Court.  A review of these documents may fall under the designated document review service described above for which Law Firm is paid on a capitated basis.  Law Firm agrees to review and provide advice on these documents, provided the Member agrees to transmit a letter to the court at the time of the filing of the documents that includes this language:

At the request of [Member] Law Firm has reviewed the attached pleading or document or a version thereof that [Member] has informed Law Firm that he/she intends to file in this court pro se.  Law Firm has provided legal advice to [Member] regarding the pleading or document.  Member has neither retained Law Firm to represent [Member] before this court in the proceeding initiated by the attached pleading or a version thereof nor has Law Firm agreed to represent [Member] in such proceeding.  This letter is merely notice to the court that Law Firm has reviewed and provided legal advice to [Member] with regard to the attached pleading or a version thereof to assist [Member] in accurately presenting his/her claim to the court in the proceeding.

Questions Presented

You have asked the Committee to address these questions:

1. Has Law Firm fully satisfied its ethical obligations of notice to the court as described in LEOs 1127, 1592, 1761 and 1803 by the actions described above?

For the reasons set out in this opinion, absent a court rule or law to the contrary, there is no ethical obligation to notify the court of the lawyer’s assistance to the pro se litigant.  To the extent that LEOs 1127, 1592, 1761 and 1803 are inconsistent with this opinion, they are overruled.

2. Does Law Firm have an affirmative obligation to determine if the pleading or a version thereof was filed and the letter transmitted to the court with it?

No.

3. If Law Firm determines that the pleading or a version thereof was filed without the letter, does Law Firm have an obligation to transmit a similar notice to the court?

No.

4. Does Law Firm have an obligation to determine if the pleading was filed in the form reviewed by the Law Firm and to advise the tribunal if any change was made prior to its filing?

No.

5. Does Law Firm have an obligation to determine in advance whether or not the court in which the pleading or document will be filed will consider the notice to be an appearance and Law Firm ruled counsel of record and then so notify the Member prior to filing?

The question of whether the assistance provided to a pro se litigant constitutes an “appearance” is a question of law beyond the purview of this Committee.  A lawyer owes a duty of competence to a client, even if the representation has been limited by agreement.  This would include determining a particular court’s rules, decisions or policies in regard to “ghostwriting” or providing undisclosed assistance to pro se litigants and advising a pro se litigant of any applicable law.

6. Does Law Firm have an obligation to appear as counsel of record in the proceeding even if Member refuses to engage Law Firm or compensate Law Firm on the discounted fee-for-service basis as provided in the Plan?

Probably not, but this depends on whether the court has deemed the lawyer to have entered an appearance on behalf of the Member.  See discussion below.

7. Does Law Firm have an obligation to determine if the opposing party or parties to the proceeding are represented by counsel and, if so, to provide counsel with a similar notice?

No.  Because the representation in your hypothetical will have terminated, no further ethical obligations are owed.

8. Would any answer to the questions above change if Member directly compensated Law Firm for the requested review on a fee-for-service basis if the review was not covered under the capitated payment portion of the Plan?

No.

DISCUSSION

Question 1 assumes that Law Firm has an obligation to notify the court if it has provided assistance to a member that seeks a document review of a pleading that the member has prepared and intends to file pro se.  This assumption appears to be based on the Committee’s prior guidance in Legal Ethics Opinions 1127 and 1592.  The Committee will review and analyze each. 

Legal Ethics Opinion 1127

In LEO 1127, the Committee was asked whether it is ethically permissible for a lawyer to advise and assist a pro se litigant in pending employment litigation by providing legal advice, legal research, recommendations for courses of action to follow in discovery and redrafting of documents prepared by the litigant himself.  The Committee opined that there was nothing in the Code of Professional Responsibility that prohibited a lawyer from rendering such assistance to a pro se litigant.  However, in LEO 1127, the Committee pointed to former DR 7-105(A), which requires that a lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding.  Rule 3.4(d) of the current Rules of Professional Conduct adopts the identical language.  Rule 3.4(d) is violated when a lawyer knowingly disregards “a standing rule or a ruling of a tribunal made in the course of a proceeding.” (Emphasis added).  LEO 1127 explains that the lawyer cannot disregard a court’s rule or requirement that the identity of the drafter of a pleading be disclosed.  While this may be a correct statement of an ethics rule, the rules of procedure in state and federal court generally do not require the identification of a lawyer who prepares a pleading for a pro se litigant.2  The rules of procedure require that a pleading be signed by a lawyer admitted to practice before that court, or by the unrepresented party.3  In your hypothetical, the pro se litigant signs and files the pleading, not the lawyer.  In effect, LEO 1127 advises lawyers to avoid violating a non-existent rule of procedure.  Absent a standing rule of procedure that requires disclosure of the drafter of a pleading, who does not sign that pleading nor enter an appearance as counsel of record, neither Rule 3.4(d) nor former DR 7-105(A) comes into play. 

By way of example, United States District Court Judge Henry Morgan held:

The Court believes that the practice of lawyers ghost-writing legal documents to be filed with the Court by litigants who state they are proceeding pro se is inconsistent with the intent of certain procedural, ethical, and substantive rules of the Court. While there is no specific rule that prohibits ghost-writing, the Court believes that this practice (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, see, e.g., White v. White, 886 F.2d 721, 725 (4th Cir. 1989) (citations omitted), (2) effectively nullifies the certification requirement of Rule 11 of the Federal Rules of Civil Procedure (“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 (“Rule 83.1(G)”).

Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1077-78 (E.D. Va. 1997).

In this case, there was no rule of procedure requiring that the identity of the drafting attorney be disclosed, as discussed and assumed in LEO 1127.  Further, it is more likely that the lawyers chastised by Judge Morgan in Laremont-Lopez reasonably believed that they were acting in good faith and did not knowingly disregard any standing rules in the federal court.  Without a rule of procedure prohibiting their conduct, how could they know?  The attorneys in this case maintained that they were retained by the plaintiffs for the discrete limited purpose of drafting the complaints.  They argued that at the time the complaints were filed their representation of the plaintiffs had terminated, and thus, it was appropriate for the plaintiffs to sign the pleadings as unrepresented litigants.  In short, their position is that they did not sign the pleadings because they no longer represented the plaintiffs.  Laremont-Lopez, supra, 968 F. Supp. at 1078.  It is hard to question this argument.  Indeed, Judge Morgan allowed that the attorneys’ reasoning was “not at odds with the plain language of Rule 11” but nevertheless held that they had circumvented the rule by not having signed the pleadings.  But this still begs the question of whether the lawyers in this case had knowingly disregarded any standing rule that required disclosure of their identity as the drafter of pleadings filed by the pro se litigants.  As to the lawyers in Laremont-Lopez, the court found that they had not:

The Court FINDS that the practice of ghost-writing legal documents to be filed with the Court by litigants designated as proceeding pro se is inconsistent with the procedural, ethical and substantive rules of this Court. While the Court believes that the Attorneys should have known that this practice was improper, there is no specific rule which deals with such ghost-writing. Therefore, the Court FINDS that there is insufficient evidence to find that the Attorneys knowingly and intentionally violated its Rules. In the absence of such intentional wrongdoing, the Court FINDS that disciplinary proceedings and contempt sanctions are unwarranted.

Laremont-Lopez, supra, 968 F. Supp. at 1079-80. (Emphasis added).  Judge Morgan found that the lawyer’s conduct was inconsistent with the rules but did not find that they had violated any of those rules.  However, lawyers are now on notice, because of Laremont-Lopez and other federal court cases, that “ghostwriting” may be forbidden in some courts, and should take heed, even if such conduct does not violate any specific standing rule of court.

Legal Ethics Opinion 1592

In this opinion, the Committee addressed a situation in which an attorney was retained by an uninsured motorist insurance carrier to defend the carrier in an action in which the uninsured motorist ("Defendant Motorist") has appeared pro se.  Although Attorney A had not entered an appearance on behalf of the Defendant Motorist, the Defendant Motorist consulted with Attorney A, and Attorney A assisted Defendant Motorist and/or gave Defendant Motorist advice in regard to responding to discovery requests propounded by the Plaintiff in the case.  The Committee opined:

Under DR 7-105(A), and indications from the courts that attorneys who draft pleadings for pro se clients would be deemed by the court to be counsel of record for the pro se client, any disregard by either Attorney A or Defendant Motorist of a court's requirement that the drafter of pleadings be revealed would be violative of that disciplinary rule.  Such failure to disclose would also be violative of DR 7-102(A)(3).  Further, such failure to disclose Attorney A's substantial assistance, including the drafting of pleadings and motions, may also be a misrepresentation to the court and to opposing counsel and, therefore, violative of DR 1-102(A)(4).  The committee cautions that Attorney A may wish to obtain Defendant Motorist's assurance that he will disclose A's assistance to the court and adverse counsel.  See LEO #1127; Association of the Bar of the City of New York Opinion 1987-2 (3/23/87), ABA/BNA Law. Man. on Prof. Conduct, 901:6404.

(Emphasis added).  LEO 1592 does not cite any specific cases for the italicized language nor was this conclusion reached in any of the “ghostwriting” opinions rendered in the federal courts in the Eastern District of Virginia.  Moreover, controlling authority in state court says just the opposite. Walker v. American Ass’n of Prof. Eye Care, 268 Va. 117, 597 S.E.2d 47, (2004) (lawyer who assisted pro se plaintiff with preparation of motion for judgment signed only by plaintiff as a pro se litigant and filed pleading with court together with filing fee did not appear on plaintiff’s behalf as counsel of record).  Without any supporting authority, LEO 1592 reaches the conclusion that a lawyer who assists a pro se litigant by preparing a pleading or providing her with legal assistance is deemed by the court to have entered an “appearance” as counsel of record on behalf of that person.  That conclusion is incorrect, but at least one circuit court has deemed the litigant “represented by counsel” when a lawyer prepared for a client a motion for judgment for the client to sign and proceed pro se. See Walker, supra.

LEO 1592 concluded that the lawyer violated DR 7-105(A) following the approach taken in LEO 1127.  The opinion also cites former DR 7-102(A)(3), which states:  “In his representation of a client a lawyer shall not . . .conceal or knowingly fail to disclose that which he is required by law to reveal.”  Application of this rule under these circumstances raises some questions.  First, as the attorney argued in Laremont-Lopez, the lawyer-client relationship was concluded when the “ghostwriting” attorney completed the drafting of the pleading.  So when the pro se litigant filed his pleading with the court, he was not represented by counsel.  DR 7-102(A)(3) on its face speaks to misconduct by a lawyer in the course of representing a client.  The rule seems inapplicable to the circumstances presented in the opinion.  Second, was the lawyer “required by law” to disclose that he or she assisted the pro se litigant?  As stated in the discussion of LEO 1127, there was no rule violated when the attorney failed to disclose his identity as the drafter of the pleading.  Judge Morgan was frustrated by the fact that the attorney had circumvented some other rules, but made no finding that the rules had been violated by the “ghostwriting” attorney and acknowledged that there was no rule forbidding “ghostwritten” pleadings.  Finally, LEO 1592 cites DR 1-102(A)(4) as having been violated when the lawyer failed to disclose his “substantial assistance” to an unrepresented defendant motorist.  This rule is nearly identical to current Rule 8.4 (b):  “A lawyer shall not. . .engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer’s fitness to practice law.”  Application of this rule assumes, of course, that the “ghostwriting” lawyer is being dishonest or deceitful for not having disclosed his assistance to the pro se litigant, even though no standing court rule or law required such disclosure. 

Other Bar Opinions

State and local ethics committees have reached different conclusions on whether disclosure of a lawyer’s assistance to a pro se litigant is required by the Rules of Professional Conduct.  Some have opined that no disclosure is required.4  Others, in contrast, have expressed the view that the identity of the lawyer providing assistance must be disclosed on the theory that failure to do so would both be misleading to the court and adversary counsel, and would allow the lawyer to evade responsibility for frivolous litigation under applicable court rules.5  The ABA’s Standing Committee on Ethics and Professional Responsibility took the “middle ground” approach adopted in LEOs 1127 and 1592 stating that disclosure of at least the fact of legal assistance must be made to avoid misleading the court and other parties, but that the lawyer providing the assistance need not be identified.6  The ABA has since taken the position, as have other jurisdictions, that the fact of assistance need not be disclosed, a position this Committee has likewise chosen to adopt, overruling LEOs 1127 and 1592 to the extent they are inconsistent with this opinion. See ABA Formal Op. 07-446 (May 5, 2007).  The Committee concludes that there is not a provision in the Rules of Professional Conduct that prohibits undisclosed assistance to a pro se litigant as long as the lawyer does not do so in a manner that violates a rule of conduct that otherwise would apply to the lawyer’s conduct.  This Committee does not believe that the failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the part of the lawyer or client, and therefore there would be no violation of Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c).

Analysis

LEOs 1127 and 1592 did not address the right of the client and the lawyer to agree to limit the scope of the engagement as explicitly authorized by Rule 1.2(b):  “[a] lawyer may limit the objectives of the representation if the client consents after consultation.”  Perhaps that is because there was no counterpart in the Code of Professional Responsibility for current Rule 1.2(b).7  With Virginia’s adoption of most of the ABA Model Rules in 2000, a discussion of Rule 1.2(b) and “unbundling” legal services became a hot topic not only in Virginia but across the country as well.

We agree with the reasoning in ABA Formal Op. 07-446 that:

The fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.  Litigants ordinarily have the right to proceed without representation and may do so without revealing that they have received legal assistance in the absence of a law or rule requiring disclosure.

Some case decisions and ethics opinions have required disclosure of the lawyer’s assistance on the basis that pro se litigants are treated more leniently and held to less stringent standards than litigants that are represented by counsel.  This Committee does not share this concern and believes that a pro se litigant that receives undisclosed assistance by a lawyer will not receive any unwarranted special treatment.  In many instances, if the lawyer has been competent and effective with his undisclosed assistance it will be obvious to the court and other parties that a lawyer has been involved.  If the undisclosed lawyer has not been competent or effective, the pro se litigant will have no advantage.  We see no reason to conclude, as some decisions and opinions have, that undisclosed assistance will give the pro se litigant an “unfair advantage.”  As noted by one commentator:

Practically speaking … ghostwriting is obvious from the face of the legal papers, a fact that prompts objections to ghostwriting in the first place.… Thus, where the court sees the higher quality of the pleadings, there is no reason to apply any liberality in construction because liberality is, by definition, only necessary where pleadings are obscure. If the pleading can be clearly understood, but an essential fact or element is missing, neither an attorney-drafted nor a pro se-drafted complaint should survive the motion. A court that refuses to dismiss or enter summary judgment against a non-ghostwritten pro se pleading that lacks essential facts or elements commits reversible error in the same manner as if it refuses to deny such dispositive motions against an attorney-drafted complaint.

Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URB. L.J. 1145, 1157-58 (2002).  Critics are concerned that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of undisclosed legal assistance.  That concern, in the Committee’s view, is outweighed by the court having a properly pleaded motion, complaint, answer, or other document to consider and the broader access to justice that limited assistance may promote.  The Committee believes, therefore, that the nature or extent of such assistance is immaterial and need not be disclosed.

Nor does the Committee believe that providing undisclosed assistance to a pro se litigant violates Rule 3.3.  Similarly, this Committee believes that non-disclosure of the lawyer’s assistance is not an act of dishonesty, fraud, deceit or misrepresentation that is prohibited by Rule 8.4(c) nor is the lawyer assisting the pro se litigant in conduct that is illegal or fraudulent in contravention of Rule 1.2(c).  Finally, we believe that assistance to a pro se litigant is not a material fact that must be disclosed to another party under Rule 4.1.  The Committee believes that a lawyer who has been asked by a pro se litigant for limited assistance on some discrete tasks and who undertakes them in a manner that comports with Rule 1.2(b) and all other applicable rules of conduct should not be subject to discipline for having done so.

This opinion assumes that the lawyer is practicing in a jurisdiction where no law or tribunal rule requires disclosure of such participation, prohibits litigants from employing lawyers (e.g., small claims courts), or otherwise regulates such undisclosed advice or drafting.  If there is such a regulation, the boundaries of the lawyer’s obligation are beyond the scope of this opinion.

Your inquiries in Questions 1-4 have been answered on the basis that the Rules of Professional Conduct do not obligate the lawyer to ensure that the court is informed that a pro se litigant has received assistance from the lawyer.  The Committee adds that it is not practical to require that lawyers ensure that a court is informed of his assistance to a pro se litigant after the lawyer-client relationship has ended and the lawyer has no control over what pleadings are actually filed with the court.

In regard to your Question Number 5, whether the court in which the pleading is filed will regard Law Firm as having entered an appearance on behalf of Member is a question of law beyond the Committee’s purview.8  However, as part of the lawyer’s duty of competence under Rule 1.1, the lawyer should exercise diligence and research the particular court’s view of “ghostwriting” pleadings for a pro se litigant.  As one court stated:

Nevertheless, the Court considers it improper for lawyers to draft or assist in drafting complaints or other documents submitted to the Court on behalf of litigants designated as pro se.9

Thus, regardless of whether the preparation of a pleading for a pro se litigant constitutes an “appearance,” the lawyer must make a reasonable effort to determine if the particular court will permit the preparation of a lawsuit on behalf of a pro se litigant that is not signed by the lawyer preparing the document, as some courts do not allow such a practice on procedural, ethical and substantive grounds.10  As some courts have complained that “ghostwriting” evades the lawyer’s obligations under Rule 11 of the Federal Rules of Civil Procedure, Law Firm must also be mindful of its obligation to not assist a Member in the preparation of a pleading that is frivolous.  See Rule 3.1.11

This Committee observes that, in contrast to the federal court precedents, a majority of state courts and state bar ethics opinions point to a positive trend toward acceptance of undisclosed assistance to pro se litigants.  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)(reporting that of 24 states that have addressed this issue, 13 permit ghostwriting, and of those 13 states, 10 permit undisclosed ghostwriting while 3 require a statement on the pleading to indicate it was prepared with the assistance of counsel; 10 states expressly forbid ghostwriting).  Even some federal courts have “softened” their position toward ghostwriting.  The Second Circuit, in an attorney disciplinary case styled In re Fengling Liu, Doc. No. 09-90006-am, 2011 U.S. App. LEXIS 23326 (Nov. 22, 2011), while publicly reprimanding an immigration lawyer for other misconduct, found that her ghostwritten pleadings were not improper:

We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from Court or that she otherwise acted in bad faith.  The petitions for review not at issue were fairly simple and unlikely to cause 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 petitioner’s right of review by satisfying the thirty-day jurisdictional deadline—demonstrated concern for 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.

In response to Question Number 6, this is a question of law beyond the Committee’s purview.  Assuming the court deems Law Firm to have appeared as counsel for Member, Law Firm would have a duty to perform the tasks required of counsel of record to protect Member’s interests in the pending case unless and until Law Firm is granted leave to withdraw, even if Member refuses to pay for Law Firm’s services.

As to your Question Number 7, to perform only the limited and discrete task of preparing a pleading for a person to file pro se, the Committee does not believe the Rules of Professional Conduct require that notice of that limited representation be given to an opposing party or their counsel. 

As to your Question Number 8, the Committee believes that the manner in which Law Firm is compensated does not affect how the questions in this opinion are addressed.

Conclusion

To sum up, the Committee does not believe that nondisclosure of the fact of legal assistance is dishonest so as to violate Rules 3.3 or 8.4(c).  Whether 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.  The lawyer is making no representation to the tribunal regarding the nature or scope of the representation, and indeed, may be obliged under Rule 1.6 not to reveal the fact of the representation.  Absent an affirmative statement by the client that can be attributed to the lawyer that the documents were prepared without legal assistance, the lawyer has not made any false statements of fact to the court prohibited by Rule 3.3, nor has been dishonest within the meaning of Rule 8.4(c).  The non-disclosure of the lawyer’s behind-the-scenes assistance is not material to the court’s determination of the merits of the pro se litigant’s position or case and therefore the court is not misled by the non-disclosure.

While this Committee opines that undisclosed assistance to a pro se litigant is permissible under the Rules of Professional Conduct, if a lawyer agrees to prepare a lawsuit for a pro se litigant, he or she must do so competently and may not prepare one that is frivolous.  See Rules 1.1 and 3.1.  Preparing a lawsuit for a person to file pro se requires that the lawyer make a sufficient inquiry of the facts and research of applicable law to ensure that the pleading contains claims that are not frivolous.  Further, depending on the complexity of the case and the sophistication of the limited scope client, the preparation of a lawsuit for the limited scope client may not be an appropriate means by which to accomplish the client’s objectives.  See Rule 1.2.  When limited scope representation is considered for a pro se litigant, the lawyer must meet the “consultation” requirement of Rule 1.2 by explaining to the client the advantages and disadvantages of limited scope versus full representation.

This Committee concludes that the Rules of Professional Conduct do not prohibit undisclosed assistance to a pro se litigant. However, lawyers who undertake to prepare or assist in the preparation of a pleading for a pro se litigant may advise the pro se litigant to insert a statement to the effect that “this document was prepared with the assistance of a licensed and active member of the Virginia State Bar.” Because the fact of the lawyer’s assistance may be confidential under Rule 1.6(a), the lawyer should not include such a statement if the client objects to revealing that fact.

This opinion is advisory only and is not binding on any court or tribunal.

Committee Opinion

July 28, 2014