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A lawyer may ethically play a limited role in representing a client and ghostwrite documents for court proceedings, according to a New York ethics opinion.

In Formal Opinion 742, the New York County Lawyers Association Committee on Professional Ethics considered the following question: Can a lawyer ethically remain behind the scenes of litigation and prepare pleadings and other submissions for a pro se litigant without disclosing his or her participation to the court and adverse counsel?

In light of recently adopted new rules on attorney ethics in New York, which recognize that clients might benefit from limited scope representation, the Committee answered in the affirmative.

It recognized that limited scope legal arrangements – when lawyers offer “unbundled” legal services – provide substantial benefits to both litigants and the judicial system, and the trend is toward supporting ghostwriting as one way of providing such limited representation.

The Committee cited decisions from the Los Angeles County Bar Association Committee on Professional Responsibility and Ethics and the Arizona State Bar Committee on the Rules of Professional Conduct, as well as the American Bar Association, in support of ghostwriting.

“If lawyers were required to always identify the provision of limited scope representation to pro se litigants, there is a significant risk that the lawyer would be compelled to assume and/or continue the representation beyond the scope of the agreement. Not only would such a result undermine the purpose of [New York’s rules on professional responsibility], it would force a client to spend more money than he or she is able to or force the lawyer to work free of charge. Either result would be problematic. Thus, permitting ghostwriting has the advantage of increasing access to justice on behalf of the unrepresented or underrepresented. …

“Moreover, permitting ghostwriting is consistent with practice in other areas of the law, in which lawyers draft documents for their clients’ signatures, such as prospectuses, correspondence, offering plans, affidavits and legal notices, without disclosing the lawyer’s authorship,” the Committee said.

It disagreed with concerns that ghostwriting would offer an advantage to pro se litigants and make it harder to sanction frivolous behavior by a party or counsel.

However, the Committee recognized that under the state rules, disclosure of a limited scope representation may occur “where necessary.”

“[W]e believe that disclosure is necessary only in the following circumstances: where mandated by (1) a procedural rule, (2) a court rule, (3) a particular judge’s rule, (4) a judge’s order in a specific case, or in any other situation in which an attorney’s ghostwriting would constitute a misrepresentation or otherwise violate a law or rule of professional conduct. … In such circumstances, absent a more specific rule of court, a lawyer should usually be able to fulfill any disclosure obligation with the notation ‘Prepared with the assistance of counsel admitted in New York,’” the Committee said.

– Correy E. Stephenson

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