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Kansas Ethics Opinion Requires Disclosure on Ghostwritten Pleadings

Posted Dec 1, 2009 1:53 PM CDT
By Debra Cassens Weiss

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Lawyers who ghostwrite court documents for clients seeking to hold down legal costs will have to disclose their role in the drafting, according to a Kansas legal ethics opinion.

The economic downturn is spurring more penny-pinching clients to ask lawyers to handle only parts of their representation—part of the trend toward unbundled legal services. But can lawyers ethically go along with such requests?

The Kansas Ethics Advisory Opinion Committee has answered in the affirmative. Unbundled representation is permissible, the Nov. 24 Kansas opinion (PDF) says, if lawyers follow the ethics rules and take additional steps.

Those steps include: 1) The lawyer should establish in writing the limited tasks to be performed, and 2) The lawyer should mark any document he or she prepares with the phrase, “Prepared with the assistance of counsel.”

ABA Formal Opinion 07-446 says lawyers may help pro se litigants prepare pleadings without disclosing their role. But the Kansas opinion differs with that conclusion.

“The Kansas Ethics Advisory Opinion Committee is concerned with the appearance and the impression which are left by pleadings prepared with the assistance of an attorney without disclosing that assistance,” the opinion says. “This implicates the lawyer’s duties under Rule 3.3, ‘Candor Towards the Tribunal.’ Therefore, the committee believes that such assistance should be clearly disclosed.”

Related coverage:

ABA Journal: “Scary Parts of Ghostwriting”

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