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Ghostwriting Is OK, so Long as It's Disclosed

Over at the Legal Profession Blog, Alan Childress has an interesting post on the ethics of ghostwriting legal briefs for pro se litigants.  Childress discusses a recent ruling out of a federal district court in New Jersey holding that undisclosed ghostwriting violates legal ethics rules and Rule 11 of the FRCP and, as such, "should not be permitted in federal court in New Jersey." 

According to the post, courts typically do not enforce their rules as stringently against pro se's, so where pro se's are assisted by an undisclosed attorney, they gain an added advantage.

The court's rationale makes sense, in some respects. For example, if an attorney won't represent a client because he believes the claim is frivolous, he shouldn't be able to circumvent Rule 11 by having the client sign the pleadings. On the other hand, requiring disclosure of attorney assistance can have a chilling effect on a lawyer's willingness to provide "unbundled legal services," i.e., legal services on an a la carte basis, with litigants picking and choosing what they need. There are times when a litigant has a legitimate claim or defense, but can't afford to hire a lawyer on a full-service basis. So an attorney might be willing to act as a "consultant," on a limited basis, by providing a pro se with templates or reviewing pleadings. But while an attorney might do this off the record, he might not want his name associated with the pro se's filing, which may not match the quality of the attorney's usual, for-fee work.

What's your opinion on New Jersey's rule against ghostwriting? Extra points for reading the decision and seeing what the other courts say about this practice.

Posted by Carolyn Elefant on March 15, 2007 at 06:08 PM | Permalink | Comments (1)


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