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'Ghostwriting' as Limited Representation: Ghost of a Chance

Authors: Samuel W. Milkes and Joseph A. Sullivan

1/14/2013

This article originally was published in the January/February 2013 issue of The Pennsylvania Lawyer, published by the Pennsylvania Bar Association as a service to PBA members and the legal profession at large. It is reprinted here with permission.

The limited ability of many disadvantaged persons to afford counsel has led to new efforts to bridge the gap, such as limited-representation efforts that include "ghostwriting." But guidance for lawyers in this area is still evolving. So lawyers took notice when the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Philadelphia Bar Association Professional Guidance Committee recently released a joint formal opinion on the subject titled "Representing Clients in Limited-Scope Engagements." (Joint Formal Opinion 2011-100) While there has been a fair amount of coverage of this opinion, we believe there is a benefit in offering some analysis of the opinion and some further guidance about how best to implement limited-scope engagements that include ghostwriting.

Limited Representation: Where Does It Fit In?

A word about the tide of this article. Often a person may have just a "ghost of a chance" of succeeding in litigation or in the drafting of a document without the help of an attorney. The person may not know how to file an answer to a complaint for eviction, for example, or may not know what to file to contest a property tax assessment. Many people are not aware of the rules of evidence or what a burden of proof entails. For reasons such as these, some basic advice and, in some cases, ghostwriting can give this person a much greater chance of overall success, even though the person will thereafter be on his or her own. As stated in Formal Opinion 2011-100, limited-representation engagements are permitted and encouraged by the Rules of Professional Conduct (especially Rule 1.2). We suggest that lawyers consider giving clients more than a ghost of a chance by providing appropriate limited services in those situations where for a variety of reasons full services cannot be offered.

Formal Opinion 2011-100 could fairly be characterized as a two-part endeavor. First, the committees detail the degree to which lawyers may limit the scope of their client representation, such as by subject matter, degree of involvement and type of tribunal. Next, the committees outline a number of ethical considerations applicable to this kind of representation, particularly involving ghostwriting. We applaud the suggestion that lawyers may reasonably limit the scope of representation, with the client's informed consent, because in our view such representation offers hope to many who otherwise would have to go it alone. We also applaud the ethics analysis as to appropriate kinds of limited representation, including ghostwriting, and we offer some further guidance that may make it easier for lawyers to take this sound ethical analysis and put it into practice for those in need of legal help.

Of course, in issuing their opinion the committees added a caveat that it is just that: an opinion. It is advisory only and not binding on the Disciplinary Board of the Supreme Court or on any court. The committees further noted that all of the Rules of Professional Conduct apply in limited-representation situations and that other sources of law, such as court rules and regulations governing practice before government agencies, also apply.

Why Is a limited-Representation Option So Important?

In the legal aid context, we point to a recent study by the Legal Services Corp. titled "Documenting the Justice Gap," which found that for each eligible client represented by a civil legal aid program, another person also asked for help and was eligible for services but had to be turned away due to lack of resources. The national study included Pennsylvania data, which confirmed the same thing and showed that the need is especially acute in rural parts of the state. This study preceded the economic downturn that began in 2008 that has resulted in increased need for legal services in both urban and rural parts of the state.

There is a case to be made for a right to counsel in certain legal matters that affect basic human needs, but that is for a different article. Here we accept that resources and funds are limited and that both the private practitioner and the legal aid provider may at times have to limit the services they provide, even when the client may want or need more.

Limited Representation from the Private Bar and Legal Services Perspectives

Coming from the private sector and the legal services sector, we address these subjects with somewhat differing backgrounds and perspectives.

Lawyers in private practice may have resource limitations that affect the services they can provide even to their fee-paying clients. Some may be able to offer low-income clients reduced hourly rates while charging their regular rates to the majority of their clients. For these lawyers the option of providing limited representation may give them more flexibility in serving low-income clients. For law firms and lawyers that have regular pro bono programs the limited-representation option in areas in which it seems well-suited may allow them to serve a larger number of pro bono clients and to develop greater expertise in certain areas of poverty law.

A number of legal aid programs across the state offer legal representation to parents in child custody and support matters, but some may not have the resources available to represent fully all those in need. While the clients in such situations may prefer full representation, they can still benefit from information learned in a custody clinic, for example. For clients who have never been in a courtroom before or whose educational achievement or English language proficiency is limited, the assistance of a lawyer on a limited-representation basis can provide a substantial benefit over going it alone. And studies show that special help is generally more essential for individuals with limited education or limited English skills.

There is no question that judges would prefer that all litigants be fully represented. But the Pennsylvania judiciary is cognizant of the limits on resources and has been proactive in this area, having conducted a number of trainings in recent years and having developed materials to improve courtroom operations and outcomes for those who do not have full representation. Judges know that they will continue to have self-represented litigants appear before them. But the challenge remains, especially when one litigant is represented and the other is not, to level the playing field as much as possible (while not advocating for either side) and to ensure equal access to all.

The Overall Principles Set Out in Formal Opinion 2011-100

While the committees discuss the interplay of a number of the Rules of Professional Conduct in Formal Opinion 2011-100, they place great emphasis on the two key tenets of Rule1.2(c). We agree that these two tenets form the heart of the limited-representation analysis.

Rule 1.2(c) provides that a lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives "informed consent," a term that is separately defined in Rule 1.0.

What Are 'Reasonable Circumstances'?

The touchstone of what is reasonable is an assessment of the circumstances presented. The committees, referring to a portion of the comment to Rule 1.2, suggest that a reasonable circumstance for limited representation would be a common legal matter that is typically uncomplicated. In such a case the lawyer and client could agree, for example, that the lawyer's services might be limited to a brief telephone consultation. But the committees then note that such a consultation would not be reasonable if the time allotted was not sufficient to yield advice on which the client could rely. Circumstances matter.

With this approach in mind we offer some practical suggestions as to pivotal types of legal matters and client characteristics to inform the evaluation of whether a particular set of facts and legal circumstances is appropriate for limited representation.

Nature of the Proceedings

Clearly, legal proceedings and legally binding documents range from the basic to the highly complex. So, for example, landlord-tenant residential eviction proceedings, at least at the first level, may involve a simple set of facts and circumstances. The facts, while disputed, may focus on a common core of basic details: Has the rent been paid? Has the tenant kept the apartment in good shape? Is the landlord maintaining the building in adequate condition such that the tenant is getting what he or she is paying for? Is the building in violation of zoning or utility code requirements?

Another example might be disputes over child custody. Are the parents largely in favor of some kind of joint custody of their minor children? Is the dispute focused not on terminating one parent's access to a child and more about how many hours and what days of the week each parent will have custody?

In cases such as these, limited representation may be appropriate - particularly if the only practical alternative is for the disputing parties to go it alone.

In fact two relatively new limited-representation projects have been created in Pennsylvania for situations such as these. In Philadelphia a number of pro bono attorneys are representing low-income tenants in municipal court. The lawyers only learn of the cases about a week before eviction hearings are scheduled and must determine the basic facts, meet with the clients to review the dispute, obtain the clients' informed consent and then go with the clients to municipal court for hearings. Often lawyers on both sides and their clients are able to reach amicable settlements. If they do the pro bono lawyer's duties are discharged. If no settlement is reached the losing party remains free to file an appeal under state law. The lawyer's limited representation ends and the parties must represent themselves on appeal unless they find other counsel. But even self-represented parties have learned a great deal that they can use if they pursue their appeals on their own.

Similarly, in Pittsburgh the court of common pleas and the Pittsburgh Pro Bono Partnership have created a "custody conciliation" project in which parents in dispute over the terms of custody arrangements can choose to go through an extra step in the resolution process to try to settle their differences. Pro bono attorneys meet with their clients shortly before the scheduled custody conciliation. Both parties then engage along with their pro bono counsel in a discussion that reduces the tension, lays out the factual disagreements and often yields an agreement on custody that is then submitted to the court for approval. Whether or not settlement is reached, the pro bono attorney's service ends at the conclusion of the custody conciliation conference. Cases without settlements continue in the ordinary course.

One caveat that arises in the child custody example and in other cases and circumstances is that generally an attorney must be cautious about providing limited representation where domestic violence is at issue. It is generally not reasonable to expect a client to represent himself or herself completely if the opposing party has been threatening or violent toward the client. Even though the subject matter may be simple, a person cannot normally be expected to handle his or her own case if that person is fearful of or physically intimidated by the other side. We would be inclined to label such circumstances as per se unreasonable for certain types of limited representation were it not for the fact that there can be rare exceptions.

In contrast to these kinds of proceedings, a complex copyright or licensing dispute that is heading to trial or a dispute about whether building construction plans are compliant with the Americans with Disabilities Act may be wholly unsuited to limited representation.

Client Characteristics

The nature of the clients to be represented can be equally relevant to whether ghostwriting and limited representations are appropriate. As the committees note, the need for clients to be engaged in their own representation and to agree to significant decisions in the representation may pose restrictions on who can be properly represented in limited-representation circumstances. So, therefore, minors, incapacitated individuals and other persons with cognitive disabilities will normally be unsuited for limited assistance and may require more thorough and in-depth representation to ensure that their rights and interests are protected. Also, those who are not fluent in English will generally be in need of more comprehensive representation.

What Does 'Informed Consent' Mean in These Circumstances?

Rule 1.2(c) also requires that there be informed consent by a client to the limitation of representation. This means the "consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." (Rule 1.0 definition of "informed consent.")

As with the assessment of whether limited representation is practical and effective (i.e., "reasonable"), we suggest that lawyers understand there may be tradeoffs for the speedy resolution of conflicts through ghostwriting and other limited-representation options.

Among other issues, we recommend that the following questions be considered in the general context of limiting services:

  • Will the limited-representation assistance be too narrow to provide the full range of help actually needed by the self-represented litigant?
  • Will the limited-representation work product be accessible to the client such that he or she can use it going forward as a self-represented party?
  • Does the client appreciate how much work he or she will have to do after the lawyer has completed ghostwriting a draft or outlining a set of issues, and is the client willing and able to do that work?
  • Is the client genuinely able to understand the limitations and make effective use of the limited services provided by the attorney?

When the limited services involve ghostwriting we suggest that there are additional questions to be considered:

  • Is the client effectively able to understand and utilize the ghostwritten material? Here, it may be that an attorney could hand to a client a suggested responsive pleading to file in court. But if the client's individual circumstances or the complexity of the issues demonstrate that the client does not understand what he or she is filing, this may be a basis for avoiding ghostwriting. On the other hand, complex legal issues can be addressed in ghostwritten documents, provided that the client is able to comprehend the issues. A ghostwritten pleading challenging jurisdiction of the court over the subject matter may delve into some complex discussion, but many clients will effectively be able to comprehend and state the nature of the legal challenge.
  • How will the ghostwritten material be used? If, for example, the product is preliminary objections (POs) that will have to be argued before a judge, there must be very careful discussion, considering the client's individual circumstances, of whether drafting the POs is a reasonable limitation of services. If the POs are to be filed but not argued, the client may well have the capacity to understand them sufficiently, even if the client does not have the capacity to argue them.
  • Does the client fully understand the degree of completeness of the ghostwritten product? In some circumstances an attorney may provide a client with a form pleading that the client will still need to customize to his or her individual circumstances. In other circumstances the attorney may perform this function.

These considerations are variations on the theme that the client must understand the limits of ghostwriting or other limited help and that only when the client does understand can he or she give meaningful and informed consent.

Is Disclosure of Ghostwriting to the Court or Other Parties Required?

The committees conducted an extensive examination of whether forms of limited representation, particularly ghostwriting, can be done without an attorney entering an appearance or otherwise identifying himself or herself. Following this analysis the committees concluded that the Rules of Professional Conduct do not require that a lawyer disclose his or her role in providing limited assistance and that the client has the right to keep the relationship with limited-representation counsel confidential under Rule 1.2 and Rule 1.6.

Formal Opinion 2011-100 contains some careful analysis of the issue of disclosure, noting that early opinions on the issue concluded that disclosure was required under either Rule 3.3 (Candor Toward the Tribunal) or Rule 8.4 (Misconduct; barring "dishonesty, fraud, deceit or misrepresentation'' or "conduct prejudicial to administration of justice"). The committees note that there is nothing dishonest, fraudulent or deceitful in entering into a limited-representation relationship and that the client may prefer that the source of the limited representation not be disclosed. Of course, the lawyer providing that assistance must abide by all the other applicable Rules of Professional Conduct as well as statutes, court orders and other sources of law, which may require disclosure in certain case types or before certain tribunals or judges.

We suggest that the lawyer who has ghostwritten a draft complaint in a litigation matter or who has provided comments on a draft contract think about the possible longer-term repercussions of maintaining nondisclosure.

Among the issues may be:

• Will the court expect more from a self-represented litigant who presents an excellent, ghostwritten complaint or response to a motion to dismiss than the client can provide on his or her own?

• Will an opposing party in a contract dispute be more cooperative in face-to-face negotiations with the other party if the self-represented client presents a thorough analysis of the facts and the law drafted by a lawyer who identifies himself or herself? Or will the known participation of a lawyer cause the other side then to go out and retain counsel as well, leading to a more contentious and prolonged battle?

• Will the ghostwriting help of a nondisclosed lawyer create a false sense of confidence in a party who must then represent himself or herself but who may not have the necessary knowledge and skills to proceed?

As a practical matter we suggest that a lawyer simply conduct an assessment of the confidentiality or nondisclosure issue with the client and come to an agreed-upon decision with the client. The committees' analysis in Formal Opinion 2011-100 makes clear that the Rules of Professional Conduct do not by themselves mandate disclosure. Thus, whether or not a party who has obtained ghostwriting assistance should disclose that fact is strictly a case-by-case strategic decision to be made by the lawyer and client but subject to disciplinary and court rules and applicable law.

Conclusion

The disciplinary rules and the practical reality that need will sometimes exceed resources dictate that legal aid providers, private practitioners and pro bono lawyers will need at times to limit the scope of their representation of clients and sometimes ghostwrite documents for clients. The disciplinary rules permit this, provided the limitations are reasonable and there is informed consent of the client.

Whether the limitations are in fact reasonable and whether informed consent is or even can be given will depend upon individual circumstances, including any limitations the client brings to the table and the nature of the services themselves.

Limitation of legal services in the form of ghostwriting can be a very effective way of providing meaningful, albeit limited, services to a client. There are some additional client-specific and case-specific considerations we have highlighted that pertain to whether ghostwriting is a reasonable limitation of services and whether the client can effectively provide informed consent. And, of course, the provision of these services as well as the question of whether the relationship must be divulged to the court are subject to rules of court or applicable statutes as well as requirements imposed by individual judges.

Samuel W. Milkes and Joseph A. Sullivan

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.