Wednesday, March 14, 2007

Ghostwriting Briefs in New Jersey: Don't Do It On The Sly

Posted by Alan Childress

We have posted on "unbundled" legal representations, or discrete-task services provided by an attorney without generally appearing for the party.  One such task, allowed in several states at least for particular types of courts or cases, is giving assistance in a pro se litigant's brief-writing or pleadings, even to the649809_ghost_1 point of ghostwriting.  A federal court in New Jersey recently has surveyed ghostwriting across the country, and has expressed ethical issues with it being done by an attorney, at least without disclosure.  It may also raise conflicts problems (though in this case it ultimately did not).  A helpful summary, from the Freivogel on Conflicts website [by William Freivogel] as its second New posting (3/13/07), is also reproduced here below the fold.  Mike had already linked in this post an Arizona opinion which also surveys ghostwriting in various jurisdictions.

Freivogel writes:

NEW (posted March 13, 2007) Delso v. Trustees for Plan of Merck & Co., Inc., 2007 U.S. Dist. LEXIS 16643 (D.N.J. March 5, 2007). Although the plaintiff was appearing pro se, the defendants moved to disqualify a lawyer who was ghostwriting the plaintiff’s pleadings. In a routine former client/substantial relationship analysis, the court found no such relationship and denied the motion for that reason. The court did, however, make a finding that undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey. The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se litigants more slack. That puts the other side at a disadvantage when the pro se litigants’ pleadings are ghostwritten by lawyers.

http://lawprofessors.typepad.com/legal_profession/2007/03/ghostwriting_br.html

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