Tuesday, June 9, 2015

No Ghosts In Rhode Island

The Rhode Island Supreme Court has decided that ghostwritten pleadings are improper but nonetheless vacated sanctions against three attorneys who had engaged in the practice

We have carefully considered the various comments of amici and, pursuant to our general supervisory authority, we declare the policy in our courts to be as follows: An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gives informed consent. See Rule 1.2(c). Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship. An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation. The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance.

Unless and until we are persuaded otherwise, we believe that full disclosure of the attorney’s involvement, albeit limited, is the better practice.

The court's web page summary

This set of appeals emanated from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro se defendants in three separate debt collection cases, a practice colloquially known as ghostwriting.  These appeals presented the Supreme Court with two issues of first impression: (1) whether Rule 11 of the Superior Court Rules of Civil Procedure applies to an attorney who neither signed a pleading nor entered his or her appearance in the case; and (2) whether the anonymous preparation of pleadings for self-represented litigants is a permissible practice pursuant to the Supreme Court Rules of Professional Conduct.
 
The hearing justices imposed sanctions on each attorney for drafting, but not signing, answers and objections to dispositive motions on behalf of the three pro se defendants.  All three attorneys argued that Rule 11 did not apply to their respective situations because none had either signed the pleadings or entered an appearance.  The Supreme Court held that the conduct of the three attorneys did not violate Rule 11 and, accordingly, vacated the sanctions imposed by the three Superior Court orders.
  
The attorneys also argued that ghostwriting was a permissible form of limited-scope representation pursuant to Article V, Rule 1.2(c) of the Supreme Court Rules of Professional Conduct.  The Supreme Court declared the policy in our courts to be as follows: An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gave informed consent.  Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship.  An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation.  The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance.
  
Through an order, the Supreme Court invited comment from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.

In my view, the benefits that ghostwriting pleadings provide in terms of access to justice outweighs the harms. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2015/06/the-rhode-island-supreme-court-has-decided-this-set-of-appeals-emanated-from-the-activities-of-three-attorneys-who-authored.html

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