Blogosphere Reacts to Second Circuit Decision on Legal Ghostwriting

A sampling of legal commentary regarding the Second Circuit's In Re Fengling Liu decision, in which the Court decided not to discipline a ghostwriting attorney:

"The Court of Appeals is now saying that lawyers who ghostwrite pro se documents are not violating the professional responsibility rules." - Bergstein & Ullrich, LLP, Second Circuit Civil Rights Opinions

"Clearly, the matter is far from resolved in the courts." - Jane Genova, Law and More

"In a decidedly unsatisfying opinion the Second Circuit ruled that Fengling Liu, an immigration lawyer who, inter alia, drafted the papers submitted by pro se litigants without disclosing to the court that it was her work, did not violate her "duty of candor" to the court...

The problem is that the decision does not hold that unbundling is not unethical...

[T]he court drops a footnote that makes this decision more of a problem than an aid.

However, in light of the importance of the ghostwriting issue, and the fact that the effect of ghostwriting on disqualification issues is not discussed in the ethics opinions described in the text, we recommend to the Court that it consider the amendment of its rules to resolve the matter.

To the extent that Liu found refuge in the confusion, it seems that the court has now given her it's one free pass, and this decision warns everyone else in the Second Circuit that unless and until the rules are clarified, no one can claim confusion as a safe harbor." - Scott H. Greenfield, Simple Justice

"Typically there’s no factual track record demonstrating that these undercover lawyers are causing any harm — like “clients” complaining that they were defrauded — to support these [anti-ghostwriting] decisions and the only impact they have, besides punishing well-meaning lawyers, is to leave a few more people further out in the cold... Ghostwriting is bad for [the law] business, not wrong." - John Toothman, Civilian's Guide to Lawyers

Federal Court Rules that Incompetent Lawyering, but Not Legal Ghostwriting, Is Grounds for Sanctions

     The Second Circuit Court of Appeals based in Manhattan ruled this week that an attorney did not violate any ethics rules by ghostwriting pleadings on behalf of pro se clients in immigration proceedings, according to the New York Law Journal. 

     The decision is another victory for legal ghostwriting advocates and attorneys who offer unbundled legal services. The ruling lends particular support to ghostwriting attorneys in New York, who - apparently according to the decision - may offer their services to self-represented litigants so long as they disclose their work on court pleadings, and, of course, competently render their services to their clients. 

     Most encouraging was the Court's observation that most opinions and decisions opposed to legal ghostwriting were issued before the American Bar Association's 2007 ethics opinion expressly permitting legal ghostwriting. The Court noted that since many bar associations look to the ABA for guidance, even those jurisdictions that currently prohibit legal ghostwriting might soon change their tune.

     The lawyer in question was faulted by the court's Committee on Attorney Admissions and Grievances for failing to disclose to the Court that she had ghostwritten the pleadings. The committee found this a violation of her duty of candor. The appeals court disagreed, ruling that because the attorney did not know and was not expected to know of any duty to disclose her limited representation to the court, she should not be reprimanded for her legal ghostwriting, The Court noted several opinions previously mentioned in this blog as support for legal ghostwriting as an ethical practice before the Bar, including the 2007 ABA opinion and the New York City Law Association's 2010 opinion.

     However, this all might be of little comfort to the attorney exonerated for her ghostwriting work in the decision, because the federal court still decided to publicly reprimand her for six counts of negligent or improper lawyering

     In light of this decision, legal ghostwriting attorneys should take note that by simply disclosing their work on behalf of the pro se client, they might avoid some unwanted scrutiny by the Bar. But just like for any attorney, there is no defense for the negligent practice of law. 

     Excerpt of the Decision:

   In the present case, the Committee concluded that Liu’s undisclosed ghostwriting violated her duty of candor to the Court, contrary to the provision of the New York Lawyer’s Code of Professional Responsibility barring her from “[e]ngag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  N.Y. Lawyer’s Code of Prof’l Resp. D.R. 1-102(A)(4) (effective through March 31, 2009); accord N.Y. Rules of Prof’l Conduct R. 8.4 (effective April 1, 2009).  

   However, a determination that Liu violated D.R. 1-102(A) would require, at the very least, a finding that she knew, or should have known, of either (a) an existing obligation to disclose her drafting of pleadings, or (b) even in the absence of such a general obligation, the possibility that nondisclosure in a particular case would mislead the court in some material fashion...  

   In light of this Court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that  permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court. We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith. The petitions for review now at issue were fairly simple and unlikely to have caused any confusion or prejudice. Additionally, there is no indication that Liu sought, or was aware that she might obtain, any unfair advantage through her ghostwriting. Finally, Liu’s motive in preparing the petitions – to preserve the petitioners’ right of review by satisfying the thirty-day jurisdictional deadline – demonstrated concern for her clients rather than a desire to mislead this Court or opposing parties.  Under these circumstances, we conclude that Liu’s ghostwriting did not constitute misconduct and therefore does not warrant the imposition of discipline.

READ THE ARTICLE:

Noting Growing Acceptance, Circuit Denies Sanction for Ghostwriting.

By Mark Hamblett, New York Law Journal. November 23, 2011

READ THE DECISION:

In Re Fengling Liu.

Docket No. 09-90006-a

American Bar Association Suggests the Public Can Increasingly Benefit from Unbundled Legal Services

      The ABA published a white paper in 2009 which analyzed the way state bar associations approach unbundled legal services and legal ghostwriting issues and suggested policy guidelines. Among their conclusions was an acknowledgement that many Americans cannot afford a traditional, full-service attorney, and that providing better access to attorneys offering unbundled legal services could improve our justice system.

     The paper states:

"[w]ith the input of lawyers, self-represented litigants can benefit from getting legal advice specific to their factual issues. Beyond mere advice, some pro se litigants also need direction on completing their forms in ways that not only make the forms legally compliant, but strategically advantageous to the litigant. They can benefit from document preparation that is not done merely mechanically, but executed with foresight and judgment.
Additionally, some pro se litigants can optimize their outcomes if they have a lawyer advocate their interests before the tribunal. This may not be necessary for the entire litigation, but only for a limited purpose. The added input from lawyers not only assists the litigants, but the courts, as well. The better the litigant is prepared, the more efficiently the court operates.
While judges would no doubt prefer fully represented litigants, the choice in most venues is a self-represented litigant who is well prepared or one who is not. Courts can avoid litigants who are in a procedural revolving door when those litigants have access to the services."

Read the White Paper: 

An Analysis of Rules That Enable Lawyers to Serve Pro Se Litigants, A White Paper by the ABA Standing Committee on the Delivery of Legal Services

Volunteer Lawyer for a Day Project in New York City Demonstrates that Clients Want Unbundled Legal Services from Qualified Attorneys

      In 2008, the American Bar Association published the results of a "test of unbundled legal services in the New York City Housing Court." The study showed that, just as many in the group expected, litigants were pleased with the unbundled legal services they received.

     Here's an excerpt:

"During the interviews with Judge Schneider, she stated that based on the tenants’ responses during settlement stipulation allocutions, she expected that tenants’ levels of satisfaction with the unbundled representation would be high.
As Judge Schneider hypothesized, the litigants were enthusiastically supportive of the program, and very grateful for the services they received. 

All the litigants spoken with and surveyed found the program helpful, and ninety-three percent found their attorney very helpful. 

Not one litigant had a complaint either about the program or their attorney. 

Among the comments generated by the focus group meeting and surveys taken, the litigants explained that having an attorney for just one morning made a big difference. 

The overriding feeling about the program was best summed up by one litigant at the focus group meeting who said that when you go to court without an attorney as opposed to with an attorney, you feel the landlord’s attorney has the power and you don’t; but, when you have a lawyer, you have the power too. (Emphasis added)."

Read the Entire Report:

VOLUNTEER LAWYER FOR A DAY PROJECT REPORT:

A Joint Report by: Office of the Administrative Judge of the Civil Court of the City of New York, the Office of the Deputy Chief Administrative Judge for Justice Initiatives and the New York City Bar Association’s Committee on Legal Services to Persons of Moderate Means. February 2008. 

More Access to Unbundled Legal Services Would Benefit Middle Class, New York State Bar Association Finds

      While evaluating the ethics of unbundled legal services and legal ghostwriting, the NYSBA not only concluded such services were ethical, it found that - because it had

"a continuing responsibility to examine its rules, policies and procedures of ethics and practice to ensure that they provide access to justice and the delivery of affordable legal services to all, and in particular, middle income consumers and the poor"

 it therefore also had a goal for enhancing

"ways to permit lawyers to serve a client’s needs for unbundling where the client prefers or needs to be self-represented."

Read the Report:

The New York State Bar Association Commission on Providing Access to Legal Services for Middle Income Consumers. Report and Recommendations on “Unbundled” Legal Services, December, 2002

Family and Housing Court Litigants Might Find Unbundled Legal Services Ideal

     Family and housing courts were created in part to take the burden of large case loads off general civil courts, and in part to allow specialization of judges and attorneys because the nature of  many of the cases is very similar. This specialization is intended to improve the quality of justice delivered by the court.

     But despite the goal of creating special courts more accommodating to the parties involved, many of people still do not receive adequate counsel. According to a study of New York City courts, the cost of a lawyer is a large obstacle for many people, and an overwhelming majority of litigants represent themselves.

     This may be an area where Unbundled Legal Services are ideal. Persons of modest means with common needs, such as counsel on evictions or documents prepared related to child support, could seek the advice of an attorney and engage an attorney to draft appropriate legal documents without the attorney appearing on their behalf in court. Since attorneys will likely be familiar with these more common issues, they could charge a reasonable, affordable flat fee. There should be many opportunities for win-win opportunities for unbundled attorneys and self-represented litigants in housing and family law court matters.

     Excerpt from the Study:

"While precise data do not exist, informal surveys of court managers have revealed that most litigants (Family Court, approximately 75%; Housing Court, approximately 90%) appear without a lawyer for critical types of cases: evictions; domestic violence; child custody; guardianship; visitation; support; and paternity."

READ THE REPORT:

Self Represented Litigants in the New York City Family Court and New York City Housing Court

Office of the Deputy Chief Administrative Judge for Justice Initiatives. December 2005

Ten-Year Study of New Yorkers' Access to Justice Concludes that Unbundled Legal Services Could Provide Greater Equality in the Courtroom

In 2009, the results of a 10-year study by the New York judiciary into the state's legal system found that :

"[a]proximately 1.8 million litigants appear each year in New York State’s courts and countless others not yet party to a case come to court without a laywer for information and guidance. In certain types of civil cases, such as housing matters, it is estimated that while up to 90% of litigants are self-represented, the opposing side has a lawyer."

Perhaps unbundled legal services could help.

Read the Entire Study:  

Expanding Access to Justice in New York State

American Bar Association Endorses Legal Ghostwriting

       Even before unbundled legal services were expressly included in the ABA's ethical rules, the American Bar Association recognized the importance of promoting legal ghostwriting services. A formal opinion issued by the bar association in 2007 likely paved the way for unbundled legal services to be expressly included in the 2009 amendments to their rules of professional responsibility. It stated:

"In our opinion, the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.

Litigants ordinarily have the right to proceed without representation and may do so without revealing that they have received legal assistance in the absence of a law or rule requiring disclosure.
Some ethics committees have raised the concern [that] failure to disclose that lawyer provided active or substantial assistance, including the drafting of pleadings, may be misrepresentation that pro se litigants 'are the beneficiaries of special treatment,' and that their pleadings are held to 'less stringent standards than formal pleadings drafted by lawyers.'

We do not share that concern, and believe that permitting a litigant to file papers that have been prepared with the assistance of counsel without disclosing the nature and extent of such assistance will not secure unwarranted 'special treatment' for that litigant or otherwise unfairly prejudice other parties to the proceeding. 

Indeed, many authorities studying ghostwriting in this context have concluded that if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal."

READ THE ENTIRE ABA OPINION:

FORMAL OPINION 07-446 

Undisclosed Legal Assistance to Pro Se Litigants, May 5, 2007

NYU Law Review Article Advocates Testing the Merits of Unbundled Legal Services in Law Schools

     In her law review article, Rochelle Klempner points out that:

"many in New York agree that unbundled legal services is a sound mechanism to provide poor clients with greater access to the justice system." 

     But she goes a step further to say, that in instances where legal ghostwriting is appropriate to the client's needs, 

"ghostwriting furthers the lawyer's duty to meet the legal need of the public."

READ THE LAW REVIEW ARTICLE:

UNBUNDLED LEGAL SERVICES IN LITIGATED MATTERS IN NEW YORK STATE:

A Proposal To Test the Efficacy through Law School Clinics, 

By Rochelle Klempner, 30 N.Y.U. Rev. L & Soc. Change 653 (2006). 

New York State Bar Association Allows Unbundled Legal Services in New Rules of Professional Conduct

     When the NYSBA amended its ethical standard for the state's attorneys, effective April 2009, it cleared the way for unbundled legal services. New Rule 1.2(c) expressly permits attorneys to limit the scope of their representation to clients, allowing them to take responsibility for certain aspects of their case and providing them with an affordable alternative to full-service attorneys.

     Here's the bar association rule on unbundled legal services:

RULE 1.2: Scope of Representation and Allocation of Authority between Client & Lawyer

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.

Comment: Agreements Limiting Scope of Representation

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to issues related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[6A] In obtaining consent from the client, the lawyer must adequately disclose the limitations on the scope of the engagement and the matters that will be excluded. In addition, the lawyer must disclose the reasonably foreseeable consequences of the limitation. In making such disclosure, the lawyer should explain that if the lawyer or the client determines during the representation that additional services outside the limited scope specified in the engagement are necessary or advisable to represent the client adequately, then the client may need to retain separate counsel, which could result in delay, additional expense, and complications.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted were not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law. See Rules 1.1, 1.8 and 5.6.

CLICK HERE FOR THE ENTIRE NEW YORK STATE RULES OF PROFESSIONAL CONDUCT 

New York City Law Association Endorses Legal Ghostwriting

     In Opinion 742 dated April 16, 2010, the NYCLA expressly supported the practice of legal ghostwriting for the first time. The law association noted legal ghostwriting's close relationship to unbundled legal services in its opinion, which the New York State Bar Association expressly approved in 2009.

Excerpt: "Given New York’s adoption of Rule 1.2(c) and the allowance of limited scope representation, it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel…"

READ THE ENTIRE OPINION:

NYCLA Committee on Professional Ethics, Opinion 742. 

Topic: Can a lawyer ethically remain behind the scenes of a litigation and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer's participation to the court and adverse counsel? April 16, 2010.

Fordham Law Review Article Opines that Legal Ghostwriting Can Make Courtroom Fights Fairer

     Eight years before the New York City Bar Association expressly endorsed legal ghostwriting, a law professor advocated in a law review article for the practice to be adopted. Excerpt:

"Consider the case of two pro se adversary parties, one of whom has ghostwriting assistance and the other of whom does not. Under these circumstances, most people would say that the assisted party has an unfair advantage. This is just as true, however, when a pro se plaintiff is opposed by a represented adversary. The point is that ghostwriting, rather than unfairly advantaging the pro se, helps level the playing field and provides a vehicle for enhancing the pro se litigant’s access to justice."

READ THE ARTICLE:

In Defense of Ghostwriting, By Jona Goldschmidt 29 Fordham Urb. L.J. 1145-1212 (2002).