Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, October 29, 2007

Can Lawyers Give Undisclosed Assistance To Pro Se Litigants?

Aba_2 I just came across ABA Formal Opinion No. 07-446 (May 5, 2007), which concludes that it is not a violation of the Model Code for lawyers to give undisclosed assistance to pro se litigants. They also appear to indicate that lawyer ghost writing is not unethical. The ABA does not share the view exposed by many that this practice should not be permitted because pro se litigants get special treatment in litigation.

I could not disagree more with this opinion. Lawyers need to be responsible for every thing they advice or write. If they are not, then how can a client rely on such advice or papers? A friend who the lawyer gives legal advice to becomes a client whether the lawyer is paid or not.

In any event, as this ABA opinion notes, there is wide disagreement over this issue and a lawyer should consult his/her state decisions or ethical opinions on this issue.

Note, I previously blogged about lawyer ghostwriting here.

Mitchell H. Rubinstein

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Like you, I continue to think that ghostwriting for pro se litigants is a bad idea. But the lawyer who does so does not escape accountability for his work. His name may not be apparent to the court, but he still has fiduciary obligations to the client and presumably would still be liable for malpractice if he missed some obvious issues or got the brief to the client after a filing deadline. Wouldn't he?

On a related note, two prospects have approached me in the last year or so to handle oral argument only after they had briefed the case. I am perfectly willing to do this if the arguments in the briefs have some merit. The briefs in the first one were just atrocious. I never saw the briefs in the second, but I didn't take that engagement either.

And I suppose that my state (California) is not the only one where pro se's get special treatment despite cases holding that they are not entitled to it. Anyway, if the lawyer doing the ghostwriting is not a hack, I suspect most judges would guess there's a lawyer behind the pro se.


Posted by: Greg May | Oct 30, 2007 8:48:37 PM

Opposing counsel has been asking me what lawyer is helping me. I must be doing a pretty good job with my briefings to make them think a lawyer is helping me. They wanted me to identify what lawyer I have retained. I told them no one. Apparently they don't believe me. They asked again. So I said, technically you (pointing to the two OC sitting there) have helped me, and hundreds of lawyers have helped me.

I've learned, as a pro se litigant, that hundreds of lawyers publish free information on their blogs. Opposing counsel would write their motions and I would use their documents as templates, because I figure if a lawyer's documents are aceepted in court, I may as well learn from them.

Lawyers like to blog. Fortunately for me, they blog a lot and tell a lot, and post free downloads for templates.

As for pro se's getting special treatment...yeah right. Not in Georgia!

Posted by: Shark Girl | Dec 12, 2007 12:59:16 PM

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