NJ Fed. Court bars undisclosed ghostwriting

3

ghostProf  According to a summary in Freivogel on Conflicts (March 13, 2007), the Federal District Court for New Jersey has issued a decision stating that “undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey.”  The case is Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643. (via Carolyn Elefant at LegalBlogWatch and Alan Childress at  Legal Profession Blog)  A ghostwritten pleading has been drafted in whole or part by a lawyer for a party who is appearing pro se in a court proceeding; the document is filed by the party without attributing it to the attorney.   Writing the pleading is an “unbundled” service provided by the lawyer to the unrepresented litigant.

According to Freivogel:

ghostProfN “The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se litigants more slack. That puts the other side at a disadvantage when the pro se litigants’ pleadings are ghostwritten by lawyers.”

If you have access to the court’s opinion in Delso, please share the relevant parts with us.

As we reported on January 2, 2007, Rule 3.37 of the California Rules of Court permits “Undisclosed representation,” including ghostwriting and coaching.  Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.” (emphasis added)

You can find further discussion of ghostwriting, in Arizona Bar Ethics Opinion 05-06 (July 2005).  The Arizona Bar concluded that “The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona [pro se].”  The ethics opinion noted that other jurisdictions have disagreed, and collects citations to many rulings in other states (via Mike Frisch at Law Profession Blog)

ProfPointerMy perspective (as stated today in a Comment at LegalBlogWatch):  In general, if a judge gives a pro se litigant “more slack,” it should only be where and when he or she needs it in order to have the case fairly presented and heard — e.g., understanding procedural rules, presenting written arguments, asking questions at trial.  The pro se party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g., cogency of arguments, form of citations, depth of research, etc.) that has in fact been written by a lawyer.  Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading.  Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. [our prior post discusses and links to sources on the proper role of judges dealing with unrepresented litigants]

3 Comments

  1. shlep: the Self-Help Law ExPress » Blog Archive » California judges get Benchbook for handling pro se litigants

    March 21, 2007 @ 12:09 pm

    1

    […]    We’ve frequently stressed the important (and often difficult) role that judges have in the process of assuring fair access to justice for the self-represented litigant (e.g., here and there).  Attempting to help the pro se party [called pro pers in some western states] understand law and procedure and effectively present their case, while maintaining neutrality toward all parties to a suit, takes agility and skill, and an appropriate temperament. (see our post earlier this week on Ghostwriting in NJ)  Judges in the California court system were given a great tool for understanding and fulfilling this role with the publication of a 245-page guide called “Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers.” (CA Administrative Office of the Courts, Center for Families, Children and the Courts, January 2007) (via SelfHelpSupport.org, where members can access the document) […]

  2. shlep: the Self-Help Law ExPress » Blog Archive » Delso ghostwriter update

    March 23, 2007 @ 5:51 pm

    2

    […]    A week ago, we reported that a New Jersey federal court had barred the undisclosed use of “ghostwritten” pleadings.  Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643.  On March 21, 2007, the New Jersey Law Journal/Law.com had an article focusing on the Delso case and U.S. Magistrate Judge Tonianne Bongiovanni, who wrote the decision.  “‘Ghostwriting’ Lawyer Effaced From ERISA Case on Ethics Grounds,” by Charles Toutant.  At Legal Profession Blog, Alan Childress continued his coverage of Delso, getting to the nub of the NJLJ article: “Notice that the N.J. decision seems to rest on the lack of authorization in N.J. rules for such discrete-task or ‘limited’ representations, and thus may extend beyond undisclosed ghostwriting.  The judge wrote, ‘This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC [in New Jersey], ghostwriting is antithetical to the public interest’ .”  […]

  3. ProSeThoughts

    June 1, 2007 @ 9:59 pm

    3

    Why can’t lawyers ghostwrite? If I get a template from a lawyer’s site and all I have to do is fill in the case number and my name and the defendant’s name, but the rest was written by a lawyer, would that be considered ghostwriting? A template is drafted in part, yet lawyers post their documents on the Internet all the time.

    I don’t understand why it’s wrong. I’m managing three cases by myself (Court of Federal Claims, Superior Court and District Court) and some of the documents are more difficult to write than others. I’ve found a lot of information on the Internet in the form of templates and step by step instructions, but some I can’t find.

    I’d like to be able to have a lawyer ghostwrite things for me that I can’t find help on, such as writing briefs that cite laws and cases.

    I guess this is the reason lawyers won’t help pro se litigants and give advice unless they are hired to handle the case? I’ve never heard so much “we can’t give you legal advice” “I can’t advice you” in all my life. I wish there was an unbundled legal site that you can pick documents from a shopping cart and pay for it. Need a brief? Add it to your cart. Need a motion? Add it to your cart. Want us to cite cases for you? Add it to your cart. LOL! I’d be their number 1 customer.

Log in