BRIEFS FOR THE BRIEF WRITER: Ring in the New Year with new brief rule

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In my most recent column’s discussion of ghostwriting, my personal recommendation was in favor of counsel’s disclosure of an attorney’s brief-drafting for unrepresented parties. That recommendation remains unchanged.

For counsel providing either ghostwriting or limited representation brief writing (or other) services, the Supreme Court order in Petition No. 13-10 provides procedural guidance as to representations made on or after Jan. 1, 2015. Clients of limited scope representations before the effective date must still give informed consent.

For counsel who, for whatever reason, want to draft but remain nameless on a brief or other pleading, New Sec. 802.05(2m), Wis. Stats. provides only limited requirements. The statute allows counsel to draft (or help drafting) a document filed by “an otherwise self-represented person,” without counsel having to sign the document himself.

The filed document must include a statement immediately adjacent to the person’s (party’s) signature, stating, “This document was prepared with the assistance of a lawyer.” If the document is an appellate brief, the same statement must be placed on the brief. Amended Sec. 809.19(1)(h), Wis,. Stats. Counsel (at either level) must advise the party of this requirement. New S.C.R. 20:1.2(cm).

As the Wisconsin Committee Comment to new S.C.R. states 20:1.2(cm) states:

“A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are “prepared with the assistance of a lawyer.

“Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case.”

For counsel, like me, who prefer to disclose the drafting of a brief for an otherwise unrepresented party, the order approves and creates a statutory process for limited scope representation under new Sec. 802.045, Wis. Stats. The statute provides, among other things, for the filing of a specific notice of limited appearance “prior to or simultaneous with the proceeding.” Such a notice does not constitute a general  Sec. 801.14, Wis. Stats. appearance under Sec. 802.045(1), Wis. Stats.

New Sec. 802.045(2), Wis. Stats. lists what must be included in the notice of limited appearance, including “(t)he specific proceedings or issues within the scope of the limited representation.” New Sec. 802.045(4), Wis. Stats. provides for the filing and service of a notice of termination of the limited representation upon completion of the designated services. Among other things, the notice must state that counsel has completed all services within the limited representation’s scope and any court orders.

Limited representation is not allowed unless it is reasonable under the circumstances and the client gives informed consent. Amended S.C.R. 20:1.2(c). Written consent is required, unless certain exceptions exist under new S.C.R. 20:1.2(c)(1). These include representation provided to an existing client under an existing attorney/client relationship; representation solely via telephone consultation; court appointed representation; and certain nonprofit, educational and bar association sponsored program representation. Written consent creates a presumption that the representation is limited as stated in the document, and the attorney does not otherwise or generally represent the client.

Note that an otherwise unrepresented party, who receives limited scope representation is considered to be unrepresented for the purposes of the applicable Supreme Court Rule “unless the lawyer providing limited scope representation notifies the opposing lawyer otherwise.” New S.C.R. 20:4.2(b), 20:4.3(b)

For either ghostwriting or limited representation drafting, counsel may “rely on the otherwise self-represented person’s representation of facts,” unless counsel has reason to believe the representations are false or materially insufficient. Then, counsel must make his own independent factual inquiry. New Sec. 802.05t(2m), Wis. Stats., S.C.R. 20:3.1(am)

Consult the new/amended statutes/rules for additional requirements.

Thanks to Joseph Forward for his helpful information.