May 6, 2020 – The Wisconsin Supreme Court recently restored an attorney “ghostwriting” rule the court adopted in 2014 to encourage pro bono work for pro se litigants. The rule was subsequently modified in 2018 by the state legislature.

Once again, effective July 1, 2020, attorneys may draft or assist in drafting a pleading, motion, or document filed by an otherwise self-represented litigant without signing it. The document must only note that it was “prepared with the assistance of a lawyer.”

In 2018, the legislature modified the 2014 ghostwriting rule through an omnibus landlord-tenant bill, which required lawyers to identify their names and bar numbers on pleadings, motions, and documents that lawyers helped self-represented litigants draft.

Support for Restoring Ghostwriting Rule

Last year, Quarles & Brady LLP – through firm attorneys James Goldschmidt, Jeffrey Davis, Sydney Vanberg and Lauren Zenk – filed a petition to restore the 2014 rule.

The petitioners argued that the legislature’s 2018 modification had a chilling effect on attorney pro bono work. Quarles & Brady participates in various pro bono programs, including the Milwaukee Eviction Project, which triggered the 2018 legislation.

Individual attorneys, as well as attorneys representing organizations that provide pro bono services, supported the petition through written comments and public testimony.

On April 17, 2020, the court voted 5-2 to restore the 2014 ghostwriting rule through a final order. Justice Daniel Kelly and Justice Rebecca Bradley dissented, saying the rule would be beneficial but the court did not have authority to adopt it.

“The outpouring of support from Wisconsin’s legal community was remarkable, and we are very pleased that the court removed one barrier to justice by restoring this important tool for low-income, self-represented litigants,” said Goldschmidt.

The restored ghostwriting rule includes a comment, acknowledging that requiring attorneys to include names and bar numbers on documents had a chilling effect on pro bono work in Wisconsin. But the comment, in part, reminds attorneys “to be wary that the client is not using the lawyer’s limited assistance to assert meritless claims.”

Chilling Effect

The 2014 ghostwriting rule – which the court adopted after years of study on limited scope representation – was intended to encourage more attorneys to provide free or low-cost legal help in the types of cases that pro se litigants typically appear – civil, family, small claims, and probate cases – through “limited scope” drafting services.

For instance, many volunteer legal clinics allow self-represented litigants to visit with a volunteer lawyer, for free, to obtain the lawyer’s help in drafting a court filing. This allowed lawyers to do pro bono work on a limited scope as time as resources permit.

Those who testified in support of the petition at a public hearing in January told the court that the 2018 legislative modification indeed had a chilling effect on pro bono work, noting various reasons that lawyers became reluctant to participate in assisting self-represented litigants with document drafting if required to disclose their names.

The State Bar of Wisconsin supported the petition through a policy position that supports ghostwriting to promote access to justice through limited scope representation. Other groups, including Legal Action of Wisconsin, lined up to support the petition.

Margaret Niebler-Brown, director of the Volunteer Lawyers Project at Legal Action of Wisconsin, said the 2018 legislation requiring disclosure of attorney names prompted a decrease in the number of lawyers willing to provide drafting help to pro se litigants.

Raphael Ramos, director of Legal Action of Wisconsin’s Eviction Defense Project, said the elimination of ghostwriting subverted the purposes of the limited-scope representation rules – to promote access to justice – by discouraging otherwise willing attorneys from participating in pro bono opportunities like document drafting.

Nine individuals testified in support of the petition to restore the ghostwriting rule. And the supreme court received 28 written comments in support of the petition.

Heiner Giese, an attorney and lobbyist for the Apartment Association of Southeastern Wisconsin Inc. – the only party to register opposition to the petition – acknowledged that the 2018 landlord legislation created an obstacle for limited-scope representation. Giese’s main argument was that ghostwriting could lead to meritless claims.

Giese was working with legislators on a fix: attorneys would only need to disclose their names and bar numbers in “contested” cases. The State Bar of Wisconsin and other groups opposed that legislation, noting all cases are “contested” until resolved and the proposed bill would create confusion for clerks, as well as other problems. The legislature took no action on the proposed fix, included within Assembly Bill 705.

Shared Authority

The petition to the supreme court, requesting the court restore the ghostwriting rule, noted the court’s authority under Wis. Stat. section 751.12 to promulgate rules that regulate pleading, practice, and procedure in judicial proceedings in all courts.

However, that statute also says the section “shall not abridge the right of the legislature to enact, modify, or repeal statutes or rules relating to pleading, practice, and procedure.” The parties recognized the statute creates an area of shared authority.

But petitioners argued the court was best positioned to regulate pleading, practice, and procedure on this issue. After the public hearing, the court requested additional briefing on whether the court could modify a statute last modified by the state legislature.

With its final order, a majority of the court signaled its authority to restore the ghostwriting rule, despite the 2018 legislation, under section 751.12.

“As I said at the rule hearing, my reaction at the end of the process is the same as it was at the beginning: it’s astonishing that so small a grievance in a small corner of small claims court could lead to such a drastic change in state law, and it’s a very good thing our supreme court was here to do something about it,” Goldschmidt said.