May a Lawyer Secretly “Ghostwrite” Court Papers for a Pro Se Litigant?

Yes. Although the issue was unsettled for many years, the prevailing current view is that professional conduct standards do not prohibit a lawyer from preparing documents for a pro se litigant, and furthermore, do not require the lawyer to disclose the assistance.

The ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion in 2007 that attempted to address the “divergent conclusions” reached by state and local ethics opinions. See ABA Formal Op. 07-446 (May 5, 2007). In so doing, the committee rejected the notion that failing to disclose a lawyer’s participation was “dishonest” in violation of Model Rule 8.4(c). Said the committee: “[a]bsent 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 been dishonest within the meaning of Rule 8.4(c).” Id. at 4. The committee also rejected the contention that a lawyer who secretly prepares court filings violates procedural rules requiring “assumption of responsibility” for pleadings: “Such rules apply only if a lawyer signs the pleading and thereby makes an affirmative statement to the tribunal concerning the matter. Where a pro se litigant is assisted, no such duty is assumed.” Id. For these reasons, the committee concluded:

there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer’s conduct.

Id. at 4. For other state and local bar association ethics opinions addressing this issue, see https://www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/ethics_opinions.html.

On June 21, 2018, the Ethics Committee of the Mississippi Bar recently reached the same conclusion. See MS Bar Ethics Op. No. 261 (Jun. 21, 2018). In so doing, the committee noted that a lawyer may undertake a reasonable, limited-scope representation for a “specifically-defined purpose” to accomplish “limited objectives.” Among such permissible “limited objectives” is the prepartion of legal papers without further assistance. In addtion, the committee rejected concerns that courts will be misled by this practice. Said the committee:

While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c).  A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement.

Id. However, the committee cautioned that  while the rules permit a a lawyer to perform “discrete acts” for a pro se litigant, “[o]n-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c).” Id. The committee supplied neither citations to authority nor any reasoning whatsoever for this admonition.

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