Ethical Implications of Ghostwriting
LACBA Update, September 2012
By Carole J. Buckner, Chief Academic Officer of Abraham Lincoln University and Dean of the School of Law, and member of LACBA's Professional Responsibility and Ethics Committee. She practices law through Buckner Law Corp. (www.bucknerlaw.net) and may be reached at email@example.com. The opinions expressed are her own.
Ghostwriting by lawyers involves the practice of an attorney writing documents filed with the court without disclosure of the attorney’s involvement to the court or opposing counsel. Ghostwriting can involve lawyers writing for pro per or pro se litigants, out-of-state lawyers writing for in-state lawyers, or contract lawyers writing for other attorneys. Each variety of ghostwriting raises distinct legal ethics issues, implicating the duties of candor, honesty, and confidentiality as well as the prohibition on the unauthorized practice of law.
Candor and honesty. To promote access to justice, ghostwriting is authorized by California rule in the context of limited scope representation of pro per parties where a lawyer provides unbundled legal services.1 However, ghostwriting implicates the duty of candor, requiring that a lawyer employ “means only as are consistent with truth” and not mislead the court by any “artifice,”2 as well as the duty of honesty.3 To facilitate the delivery of unbundled legal services, California rules permit the filing of documents with the court by a client, where an attorney has assisted the client with writing the documents, without disclosure of the name of the attorney writing the documents to the court unless legal fees are sought by the client litigant.4 Such “ghostwriting” is also permissible in connection with family law and juvenile law matters.5
The American Bar Association concluded that ghostwriting in connection with unbundled legal services for pro per litigants is not “dishonest” within the meaning of ABA Model Rule 8.4 because the lawyer is making no statement to the forum, and the lawyer’s assistance would not be material to the court, in the absence of any affirmative statement by the client that the documents were prepared without legal assistance.6 Similarly, the Los Angeles County Bar Association concluded that ghostwriting documents for pro per litigants that are then filed with the court is not a deceptive practice, but that lawyers must follow the law as articulated by the courts.7
While California is somewhat permissive as to ghostwriting in certain contexts, federal courts addressing ghostwriting are split. One federal court in California held that ghostwriting a substantial part of a pro per litigant’s pleadings was “unprofessional” conduct but did not hold the attorney in contempt because the court concluded that the conduct did not violate any rule or law.8 Other federal court opinions vary.9
Ghostwriting and the unauthorized practice of law. Ghostwriting by out-of-state attorneys, whether for clients or other attorneys, implicates the unauthorized practice of law if the papers written are filed in court. Only active members of the California State Bar may practice law in California by advising clients regarding legal issues and acting on clients’ behalf regarding legal matters.10 Lawyers admitted to practice in another state may practice in California temporarily through California’s Multijurisdictional Practice Program, pursuant to California Rules of Court 9.45, 9.46, 9.47, 9.48, and through pro hac vice admission. Unlicensed persons engaged in the unauthorized practice of law in California commit a misdemeanor offense.11 In addition, members of the California bar shall not aid others in the unauthorized practice of law.12 Attorneys licensed only out-of-state, ghostwriting documents filed with the court by other lawyers without pro hac vice admission, must have their work supervised by a California licensed attorney who vouches for the documents filed with the court.13
Confidentiality and disclosure. Where a client desires to keep the involvement of the ghostwriting lawyer a “secret” from the court and opposing counsel, the lawyer may be obliged to keep such information confidential given the lawyer’s duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”14 However, where a lawyer engages another lawyer, such as a contract attorney, to ghostwrite papers for a client, the mandate to “keep the client reasonably informed about significant developments relating to the employment or representation”15 may require disclosure of the ghostwriting arrangements to the client, depending upon the substantiality of the ghostwriter’s contribution.16
While permitted in some contexts, attorneys must carefully consider the ethical implications of ghostwriting to avoid unexpected consequences.
1 Cal. Rules of Ct. R. 3.37 (2012).
2 Cal. Bus. & Prof. Code §6068(d); see Cal. Rules of Prof’l Conduct R. 5-200.
3 The commission of any act involving dishonesty constitutes cause for disbarment or suspension. Cal. Bus. & Prof. Code §6106.
4 Cal. Rules of Ct. R. 3.37 (2012).
5 Cal. Rules of Ct. R. 5.70 (2012).
6 ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 07-446 (2007).
7 Los Angeles County Bar Ass'n, Prof'l Responsibility and Ethics Comm., Formal Op. No. 502 (1999).
8 Ricotta v. State of California, 4 F. Supp. 2d 961, 987-88 (S.D. Cal. 1998).
9 In re Liu, Docket No. 09–90006–am (2d Cir. 2011) (dismissing charges that lawyer violated duty to avoid dishonest conduct by not informing the court of her assistance in drafting petitions filed pro se); Ellis v. Maine, 448 F. 2d 1328 (1st Cir. 1971) (lawyer violates Rule 11 if she does not sign name to brief/pleadings drafted by the lawyer, if lawyer’s contribution is substantial); Duran v. Carris, 238 F. 3d 1268 (10th Cir. 2001) (ghostwritten brief is a misrepresentation to court by litigant and attorney); Sejas v. Mortgage IT Inc., No. 1:11cv469 (JCC), 2011 BL 161287 (E.D. Va. June 20, 2011) (ghostwriting is inconsistent with ethical requirements).
10 Cal. Bus & Prof. Code §6125.
11 Cal. Bus & Prof. Code §6126.
12 Cal. Rules of Prof’l Conduct R. 1-310.
13 Winterrowd v. Am. Gen’l Annuity Ins., 556 F. 3d 815 (9th Cir. 2009) (Oregon attorney assisted California lawyer litigating case before federal district court in Central District of California, citing ABA Comm. on Prof'l Ethics Opinions, No. 316 (1967)). See also Birbrower, Montalbano, Condon & Frank, PC v. Superior Court, 17 Cal. 4th 119 (Cal. 1998) (attorney practicing law in California without being a member of the California Bar cannot collect fee).
14 Cal. Bus. & Prof. Code §6068(e); Cal. Rules of Prof'l. Conduct R. 3-100(A); ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 07-446 (2007).
15 Cal. Rules of Prof'l. Conduct R. 3-500; Cal. Bus. & Prof. Code §6068(m) (duty to keep client informed of significant developments in the matter).
16 Cal. State Bar, Standing Comm. on Prof'l Responsibility and Conduct, Formal Op. No. 2004-165 (2004) (regarding use of contract lawyers to make appearances).