Unbundled Legal Services And Ghastly Legal Opinions

Law.com presents an article about a federal magistrate who took umbrage at a lawyer's drafting pleadings for a pro se plaintiff:

Ghostwriting pleadings for a pro se litigant violates a lawyer's ethical duty of candor to the court and may amount to a violation of federal court rules, a U.S. magistrate judge holds in a case of first impression in New Jersey.

Apparently the defense lawyer objected that the pleadings were too good for the pro se litigant to have prepared herself, and when questioned (as instructed by the lawyer who was assisting her) the litigant identified the lawyer who drafted the pleadings. The magistrate made a two-part objection to the lawyer's ghost writing of the pleadings:

First and foremost, she said, courts generally construe pro se litigants' pleadings liberally and are more flexible in applying procedural rules. "Simply stated, courts often act as referees charged with ensuring a fair fight," she said. "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help."

That's "first and foremost"? It's patently silly. If you assume that a judge is competent to evaluate pleadings, it should follow that the judge will be able to figure out when extra latitude is or is not required.

There's no rule that judges have to give latitude to all pro se litigants, nor is there any rule that all pro se litigants must be treated equally. If I were a pro se litigant, and the judge knew that I was a lawyer, I wouldn't expect any latitude with my pleadings - and the judge wouldn't give me any. The magistrate didn't have to give this pro se litigant any latitude, as the pleadings appear to have been of professional quality. Either the litigant had help, and thus no extra latitude was required, or the litigant was exceptionally capable and, again, no latitude was required. There's not even a claim that extra latitude was given.

Bongiovanni found that undisclosed ghostwriting violates RPC 3.3, which charges lawyers with a duty of candor to the court. Although she found Shapiro advised Delso to answer honestly if questioned about his participation, his failure to affirmatively notify the court of his informal assistance to Delso was "not emblematic of the candid honesty contemplated by RPC 3.3," she wrote.

I again disagree. That rule provides,

RPC 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or

(5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse.

Interpreting a similar rule, Arizona applied my preferred "Judges aren't stupid" analysis:

While acknowledging the existence of the above opinions, the Committee finds that disclosure to the court or tribunal of an attorney's assistance with a court filing is not necessary when the pro per client submits the document for filing. The Committee concludes that the submission of ghostwritten documents without informing the court or tribunal does not violate ER 3.3(a)(1) and ER 8.4(c) because the practice is not inherently misleading to the court or tribunal. When presented with a document prepared with the assistance of counsel, the Committee believes that a court or tribunal can generally determine whether that document was written with a lawyer's help. ER 3.3(a)(1) proscribes against an attorney making or failing to correct a false statement of fact or law to the court or tribunal. We do not believe that the omission of an attorney's name from a filed document is a false statement of fact or law that is either made or needs to be corrected. Because the disclosure of an attorney's assistance with court filings is not obligatory under the ethical rules, by deduction, the submission of ghostwritten materials by a pro per client does not contravene ER 8.4(a)'s prohibition against violating the ethical rules through the acts of another, such as the attorney's client.

Some courts and ethics committees have evidenced disfavor with lawyers ghostwriting court documents because they believe the practice provides an unfair advantage in that courts are willing to afford more leeway to pro per clients. ... The authorities argue that a pro per party who is actually receiving the services of a lawyer thus receives the benefits of legal assistance and special treatment by the court at the same time. Another view is that it interferes with a court's ability to superintend the conduct of counsel and parties during litigation. ... Notwithstanding these arguments, courts are usually able to correctly assess when to afford pro per litigants appropriate latitude and when these litigants are being given the benefit of assistance of counsel. For case management purposes, a court can confirm the existence of assisting counsel by directly asking the pro per litigant if the issue becomes important to the resolution of the case.

I also agree with the Arizona opinion's sentiment that where no rule of disclosure exists, judges shouldn't fabricate one ("Imposing this type of disclosure rule, however, exceeds the scope of our authority.")

Bongiovanni further found that undisclosed ghostwriting violates the spirit, if not the letter, of Federal Rule of Civil Procedure 11 and Local Civil Rule 11.1, which require attorneys to certify and sign their submissions to a court. Some federal courts have found ghostwriting a per se Rule 11 violation, but Bongiovanni declined to go that far.

FRCP 11 provides,

Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature.

Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party.

Here there was no attorney of record, and there is no claim that the individual litigant did not sign the pleading. I think it is an unjustifiably attenuated reading of "if the party is not represented by an attorney" to rewrite the rule to require a counsel not of record to sign a ghost-written pleading. The local rule seems to apply a common sense reading:

Civ. Rule 11.1 Signing of Pleadings

In each case, the attorney of record who is a member of the bar of this Court shall personally sign all papers submitted to the Court or filed with the Clerk.

The attorney was not of record.

Further, if the problem is that the judge needs to know who is ghost-writing briefs such that she does not grant a pro se litigant extra latitude (even though it is obvious none is needed), why this remedy?

Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.

Why not just concoct the rule that the ghost-writing lawyer must be identified as the author of the pleading?

This type of ruling puts the pro se litigant in the position of being able to get some (but quite possibly an inadequate amount of) help from a lawyer, or to hire a lawyer. If we're going to accept that judges have so much concern for pro se litigants that they will bend the rules of civil procedure to assist them in the presentation of their cases, why simultaneously leave them in a situation where they likely cannot get the amount of outside legal assistance they need, because they either cannot find a lawyer who will take their case or cannot afford to retain a lawyer to represent them in court, as opposed to drafting the pleadings they require?