Saturday, November 26, 2011

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.

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

Docket No. 09-90006-a

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