Legal Ethics

Ethics Opinion Says Lawyers May Ghostwrite Court Papers and Not Disclose It

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Do lawyers who ghostwrite legal papers for pro se clients on a limited budget have to disclose their involvement? Another ethics opinion has weighed in on the issue, and this one says that the general answer is no.

The opinion by the New York County Lawyers’ Association notes that lawyers may provide unbundled legal services under a new 2009 state ethics rule, the New York Law Journal reports. The new rule “implicitly” allows ghostwriting, although it doesn’t do so explicitly, the opinion (PDF) says.

The ethics rule requires lawyers to disclose their limited scope representation “where necessary,” and that means when it is required by a court rule, a judge-made rule or a judge’s order, the opinion says. Disclosure may also be required where a lawyer’s representation is so expansive that he or she is essentially working as litigation counsel.

The opinion notes some concerns. Pro se pleadings are often construed liberally, and ghostwritten pleadings may give the client a leg up, some have argued. But the NYCLA opinion says judges can generally figure out which pleadings have been written with the help of a lawyer. In any event, treating a pro se litigant’s pleadings more liberally doesn’t mean the person has a better chance of winning, the opinion says. It only means it is more likely the pro se litigant’s case will be heard on the merits.

Lawyers, however, should “err on the side of caution” by disclosure when the court or opposing party is giving special consideration to pro se status, according to the opinion.

Prior related coverage: “Kansas Ethics Opinion Requires Disclosure on Ghostwritten Pleadings” “N.J. Ethics Opinion Allows Ghostwritten Pleadings for Indigent Clients”

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