Ghostwriting Petitions for Pro Se Client Didn’t Constitute Misconduct, 2nd Circuit Says
Posted Dec 1, 2011 7:00 AM CDT
By Debra Cassens Weiss
A federal appeals court has held that a lawyer who prepared ghostwritten petitions of review for pro se parties didn’t commit misconduct.
The New York City-based 2nd U.S. Circuit Court of Appeals refused to sanction lawyer Fengling Liu for the ghostwritten petitions, the New York Law Journal reports. The opinion (PDF) issued last week disagreed with the court's Committee on Attorney Admissions and Grievances, which found Liu had violated a duty of candor by failing to disclose the ghostwriting.
The 2nd Circuit noted a 2001 opinion by the Denver-based 10th U.S. Circuit Court of Appeals that ghostwritten pleadings had violated the federal requirement that papers be signed by a party’s attorney. But the court noted more recent ethics opinions that “suggest a possible trend toward greater acceptance of various forms of ghostwriting.” Among them is a 2007 ABA ethics opinion that allows ghostwriting if it doesn’t mislead the court or isn’t barred by local rules.
"In light of this court's lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this court,” the opinion said. The appeals court also noted that Liu had written the petitions to help her clients make a 30-day deadline.
The court did uphold a public reprimand for Liu, however, based on allegations she defaulted cases, failed to keep clients informed and failed to supervise her associates.
ABAJournal.com: “Ethics Opinion Says Lawyers May Ghostwrite Court Papers and Not Disclose It”
ABAJournal.com: “Kansas Ethics Opinion Requires Disclosure on Ghostwritten Pleadings”
ABAJournal.com: “N.J. Ethics Opinion Allows Ghostwritten Pleadings for Indigent Clients”
ABA Journal: “Scary Parts of Ghostwriting: While hailed by many lawyers, the practice can come back to haunt them”