Sept. 16, 2015 – Ghostwriting is permissible in Wisconsin. What is it, and what are your ethical responsibilities when ghostwriting?

Question

A prospective client came to my office and told me they were representing themselves in litigation against a former business partner. I thought the person wanted to hire me to represent them in the matter, but it turns out that the other side in the case had filed a motion for summary judgement and the judge asked for briefs. The prospective client told me they wanted to pay me to draft a response, but they would sign it and file it with the court – they don’t want me to go to court with them.

Can I do that?

Answer

The practice of a lawyer drafting pleadings, briefs, or other documents filed with a court by a pro se litigant when the lawyer’s role in drafting the documents is not disclosed is often referred to as “ghostwriting.”

In the past, several federal courts and ethics committees have looked with great disfavor on this practice. See:

• Johnson v. Bd. Of County Commissioners, 868 F. Supp 1226 (D. Colo. 1994), aff’d as modified 85 F.3d 489 (10th Cir. 1996);

• Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001);

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

• Ellis v. Maine, 448 F.2d 1325 (1st Cir. 1971);

• U.S. v. Eleven Vehicles, 966 F.Supp 361 (E.D. Pa. 1997);

• ABA Formal Opinion 1414 (1978);

• Iowa State Bar Ass’n Op. 94-35 (1995);

• Massachusetts Bar Ass’n Ethics Op. 98-1 (1998); and

• Ass’n of the Bar of the City of New York Formal Op. 1987-2 (1987).

The federal courts reject ghostwriting on the grounds that it is unfair. Because pleadings of pro se litigants are construed with a latitude not afforded to represented parties, ghostwriting may constitute a deliberate evasion of a lawyer’s responsibilities under Fed. R. Civ. P. 11. Concealing the lawyer’s role in drafting the pleadings is deceptive and violates the lawyer’s duty of candor to the tribunal (SCR 20:3.3).

However, in recent years, such views began to change. Some states, to foster limited-scope representation, have adopted statutes or court rules that permit and regulate ghostwriting. In Formal Ethics Opinion 07-446, the ABA opined that the Rules of Professional Conduct do not require lawyers to reveal assistance provided to pro se litigants, although cautioning lawyers that in some jurisdictions, statutes or local court rules may require disclosure of a lawyer’s involvement.

Until recently, Wisconsin had not addressed the issue of ghostwriting in case law, court rule, or ethics opinion. In June 2014, however, the Wisconsin Supreme Court unanimously adopted Rules Petition 13-10 and ordered the amendment of SCR Chapter 20 and the Wisconsin Statutes Chapters 800, 801, 802, and 809 relating to limited-scope representation.

Among these amendments, which became effective Jan. 1, 2015, were :

• SCR 20:1.2(cm): A lawyer may prepare pleadings, briefs, and other documents to be filed with the court as long as such filings clearly indicate on the document the statement: “This document was prepared with the assistance of a lawyer.”
  
  Wisconsin Committee Comment to SCR 20:1.2(cm): A lawyer may prepare pleadings, briefs, and other documents to be filed with the court as long as such filings clearly indicate that the filings are “prepared with the assistance of a lawyer.” Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case.

• Wis. Stat. § 802.05(2m) [Additional Representations to Court as to Preparation of Pleadings or Other Documents]:
  
  1. A lawyer may draft or assist in drafting a pleading, motion, or document filed by an otherwise self-represented person.
  
  2. The attorney is not required to sign the document.
  
  3. The document must contain a statement immediately adjacent to the person’s signature that “This document was prepared with the assistance of a lawyer.”

• SCR 20:3.1(am): A lawyer providing limited scope representation pursuant to SCR 20:1.2(c) may rely on the otherwise self-represented person’s representation of the facts, unless the lawyer has reason to believe that such representations are false, or materially insufficient, in which instance the lawyer shall make an independent inquiry into the facts.

Thus, Wisconsin lawyers now have clear answers to the questions whether ghostwriting is permissible and if so, how it should be done.

In our example, the lawyer could agree to represent the client in drafting the brief and allow the client to sign it, provided that the brief contained the required statement next to the signature block.

The Wisconsin Committee Comment to SCR 20:1.2(cm) also clarifies that, by drafting the brief for the client’s signature, the lawyer is NOT making an appearance in the matter.

Finally, the lawyer is able to rely on the client’s statement of facts, provided there are no obvious red flags, without making an independent inquiry into the facts. This last point is important because lawyers providing limited scope representation to clients by ghostwriting documents still have an obligation to provide competent representation, which requires reasonable inquiry to the factual basis of a matter, but one of the goals of limited scope representation is to keep costs to the client down.