6.06.02. Ghostwriting

Ghostwriting is when a lawyer drafts a document for a client, and the client then files the document and defends it.  This, of course, often comes up in the context of unbundled legal services where a lawyer drafts a document, and the client takes the work-product to file and defend pro se.  Is this ethical?  There is a sharp divide between state and federal courts.  Most states that have considered it allow ghostwriting (although the approaches vary), but most federal courts do not.  To demonstrate how significant the difference between state and federal courts are consider this:  in Colorado, a lawyer may provide provide unbundled legal services and engage in ghostwriting in state court, but not in federal court.[1]

To give a sense of where things stand in 2018, 17 states (and D.C.) allow ghostwriting without requiring any disclosure that a lawyer was involved; 9 states require the lawyer to ghostwrite but require a disclosure of the ghostwriter’s identification on the document; 7 states require the ghostwriter to identify themselves only if the assistance is “substantial” or “extensive”; and 8 states require the drafting lawyer to include a line in the document that it was prepared by a lawyer – but does not require identification of the drafter.[2] That same article, in an analysis of cases that raise the issue of ghostwriting finds that 75% of those receiving ghostwriting assistance are pro se plaintiffs (perhaps unsurprising), but that 19% are pro se defendants (a little surprising).  Most ghostwriting is for drafting or responding to dispositive motions (30%) and drafting complaints or amended complaints (27%).[3]

Courts that prohibit ghostwriting see it as a form of fraud on the course:  or to put it in ethics terms, the lawyer is engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”  (Rule 8.4(c)).  Some courts have also cited Rule 11 of the Rules of Civil Procedure (or at least the spirit of the rule) to require lawyers to identify themselves when they draft a document filed with the court.  The ABA has changed position on the issue.  In 1978 the ABA issued an opinion stating that a lawyer must disclose if they have assisted in drafting a document that is ultimately filed with the court.[4]  In 2007, the superseded the 1978 opinion and held that it is not dishonest or a misrepresentation for the lawyer to provide unbundled legal services without identifying their role.  The only time that a lawyer would be engaging in misrepresentation is if the lawyer instructed the client to tell the court that the documents were prepared without the assistance of a lawyer.  This is consistent with the majority of state court decisions, and runs counter to the approach taken by the majority of federal courts.

[1] There is a state ethics opinion that expressly provides that ghostwriting is allowed (Colo. Bar Ass’n Ethics Op. 101 (1998), while the local rules for the federal Colorado district provide that the district court adopts the Colorado Rules of Professional Conduct for practicing in federal court except for the Colorado rule that allows for ghostwriting.  U.S. Dist. Ct. Rules LAttyR 2(b)(1).

[2] Jona Goldschmidt, “Ghostwriting,” 3 Judicature 37 (2018).  This article makes a very interesting argument that in states where the federal and state courts have divergent approaches to ghostwriting, there could be a constitutional due process and/or equal protection claim for the party denied the right to have ghostwriter assistance.  Id. 42-43.

[3] Jona Goldschmidt, “Ghostwriting,” 3 Judicature 37, 45 (2018).

[4] ABA Informal Ethics Op. 1414 (1978).