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BRIEFS FOR THE BRIEF WRITER: Ghostwriting a scary, gray area

By: DIANE SLOMOWITZ//October 16, 2014//

BRIEFS FOR THE BRIEF WRITER: Ghostwriting a scary, gray area

By: DIANE SLOMOWITZ//October 16, 2014//

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Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or
Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or [email protected].

When an opposing party is pro se, I gird myself for his briefs. They’re typically long, disorganized, wandering and overwrought. They rail with boldfaced, capital-lettered claims of unconstitutionality. I know when I see them that my efforts to refocus the court on the real issues may take more time, and cost the client more money than in the customary full-representation case.

Occasionally, however, a pro se brief reads so well that I almost forget that its “writer” is technically unrepresented. The brief is focused, organized and controlled, and even cites relevant authority.

This unrepresented litigant is not really pro se. Some nameless attorney has written his brief for him. Should I care?

And what if I get a call from a pro se party in another case, wanting me to review his brief draft or ghostwrite one for him? Should I do it? Can I?

The Wisconsin courts and ethical rules have not specifically addressed the issue. However, ABA Formal Opinion 07-446 states:

“A lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

While recognizing that the state ethics bodies are split on the question, the ABA reasoned that:

  1. Whether a pro se litigant has received behind-the-scenes legal assistance is not material to the litigation’s merits;
  2. Judges will realize that the litigant had legal help and will not apply rules otherwise liberally construing pro se litigants’ filings;
  3. The attorney is not being dishonest, since judges will not be misled as to the help provided to the pro se litigant; and
  4. Since the lawyer does not sign the filing, he is not bound by Fed. R. Civ. P. 11 or its state equivalents.

Nonetheless, the Formal Opinion states that lawyer must not act in a manner which would otherwise violate the rules.

That answers the question, right? Maybe not.

Despite the ABA’s Formal Opinion, those courts which acknowledge the possibility of ghostwriting take a dim view of attorney ghostwriters. The courts’ concerns include counsel’s ethical duty of candor to the court, and the procedural requirements of appearances and withdrawals in a case. The courts also continue to raise Rule 11’s spectre. As stated in a typical decision:

This Court cautions the parties that the practice of attorneys “ghost-writing” briefs on behalf of pro se litigants raises serious issues of professional misconduct, and has been condemned by several other courts. See, e.g., Ricotta v. California, 4 F.Supp.2d 961, 987 (S.D.Cal.1998) (“Attorneys cross the line … when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented in some similar form in a motion before the Court. With such participation the attorney guides the course of litigation while standing in the shadows of the Courthouse door.”).

This is because such conduct circumvents the requirements of Federal Rule of Civil Procedure 11, which obligates members of the bar to sign all documents submitted to the court, and to personally represent that there are grounds to support the assertions made in each filing. Johnson v. Bd. of County Comm’rs for Cnty. of Fremont, 868 F.Supp. 1226, 1231–32 (D.Colo.1994). Ghostwritten briefs also raise issues of fundamental fairness. Federal courts are generally required to give pro se litigants greater latitude than litigants who are represented by counsel. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Thus, it would be patently unfair for a pro se litigant to benefit from the less-stringent standard applied to pro se litigants if, in fact, she is receiving substantial behind-the-scenes assistance from counsel. Laremont–Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1078 (E.D.Va.1997).

The Court agrees with its sister courts that the practice of “ghost-writing” briefs for pro se litigants is unethical and will not be permitted. …

In conducting its own independent research into the issue, the Court found no cases in which a court, on the basis of finding that a pro se litigant’s briefs had been ghostwritten by an attorney, granted a motion to dismiss. At most, courts have considered disciplinary proceedings and sanctions, Laremont–Lopez, 968 F.Supp. at 1079–80, refused to accept the plaintiff’s complaint, Thigpen v. Banas, 2010 WL 520189, at *2 (N.D.Ill. Feb.11, 2010), or ordered the pro se plaintiff to disclose the identity of the person who had been assisting her in drafting her pleadings. Johnson v. City of Joliet, 2007 WL 495258, at *3 (N.D.Ill. Feb.13, 2007).

Accordingly, dismissal of Chriswell’s complaint on the basis of alleged “ghost-writing” is not warranted here. The Court does order Chriswill, however, to file a sworn affidavit (1) disclosing whether she has received legal assistance from an attorney or someone with legal knowledge; and if so, (2) revealing the identity of the person who has been assisting her with her briefs.

Chriswell v. Big Score Entertainment, LLC, 2013 WL 315743, *4 -5 (N.D.Ill. 2013) (unpub.).

A full analysis of the ghostwriting issue appears in Loudenslager, Giving up the Ghost: A Proposal for Dealing with Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (Fall 2008).

My vote here is the same as it would be in comparable legal areas and, basically, in life. I vote for openness and disclosure. And not just for ethical reasons. We lawyers can argue up, down and sideways about those. That’s what we do for a living.

Disclosure cuts the noise. The issues of ethics, de facto representation, the scope of masked representation, and pro se favor/disfavor fall away. The case’s substantive factual and legal issues remain.

As a practical matter, if the courts don’t like ghostwriting, that’s enough for me, especially since my practice focusses on legal writing. Even ghostwriters have tell-tale, signature writing styles. File enough signed briefs, and the court may associate you with your writing’s “tell.” File a ghostwritten brief, and that “tell” could jump off the page to the court.

S.C.R. 20:1.2(c) allows limited representation, if reasonable under the circumstances and under informed consent. I would proceed under that rule, making clear in writing what I will and will not do in the case.

Of course, you may well view the issue differently. You may find sufficient comfort in the ABA’s position to engage in the practice. The issue, after all, isn’t clear.

What is clear is that you can’t address ghostwriting’s issues if you don’t know they exist in the first place.


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