Friday, June 17, 2016
Sometimes lawyers draft legal documents for people who can’t afford a lawyer and who are ineligible for legal services. The lawyer does not place his or her name of the document. Thus, “Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution.” In her article, Characterizing Ghostwriting, Deborah Lyn Basset discusses the ethics and the pros and cons of this practice. Here is the abstract:
It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution. Ghostwriting offers a practical contribution to the shortage of affordable legal services by increasing the number of individuals who are able to receive some, albeit limited, legal assistance. Despite its practical utility, ghostwriting implicates several ethical concerns, and courts have reached conflicting conclusions as to its ethical propriety. This Article, invited for the February 2015 St. Mary's Journal on Legal Malpractice and Ethics Symposium, analyzes the criticisms of legal ghostwriting and concludes that these concerns have been overstated; legal ghostwriting is consistent with the ethical rules.
You can access the article here. St. Mary's Journal on Legal Malpractice & Ethics, p. 284, 2015. Good topic for class discussion.