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