Recent Ethics Opinions on Lawyers' Ghostwriting of Legal Papers

A number of legal ethics opinions have recently been issued respecting whether a lawyer may write court papers for a pro se litigant without the lawyer’s disclosing his or her involvement to the court or opposing counsel. Here is a selected list of such opinions:

• The New York County Lawyers’ Association’s Committee on Professional Ethics Opinion 742 (April 16, 2010) determined that such nondisclosure is permissible under New York Rules of Professional Conduct Rule 1.2(c), unless disclosure is deemed “necessary” under the rule, or where the lawyer’s role “become[s] so expansive that the lawyer will be de facto acting as litigation counsel ….” Click here for details from ABA Journal (May 4, 2010), and here for details from Daniel Wise at New York Law Journal (May 4, 2010);
• Kansas Bar Association Legal Ethics Opinion No. 09-01 (November 24, 2009) provides that Kansas Rules of Professional Conduct Rule 1.2(c) permits such nondisclosure, “so long as … the limited scope of representation and the client’s consent are clearly communicated to the client, in writing, [and] … any document prepared by the attorney is marked ‘Prepared with the Assistance of Counsel[....]‘” Click here for details from ABA Journal (December 1, 2009);
• The New Jersey Supreme Court’s Advisory Committee on Professional Ethics Opinion 713 (January 28, 2008) provides that New Jersey Rules of Professional Conduct Rule 1.2(c) permits such nondisclosure, where the client is indigent, unless the lawyer’s conduct “is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance,” or “the lawyer … is in fact effectively in control of the final form and wording of the pleadings and conduct of the litigation.” Click here for details from ABA Journal (January 29, 2008);
• The American Bar Association’s Standing Committee on Ethics and Professional Responsibility Formal Opinion 07-446 (May 5, 2007) provides that ABA Model Rules of Professional Conduct Rule 1.2(c) permits such nondisclosure.

Tags: Ghostwriting of legal papers, Lawyers' ghostwriting, Legal communication, Legal ethics, Legal ethics and legal communication, Limited scope legal representation, Limited scope legal services, Model Rules of Professional Conduct Rule 1.2(c), Unbundled legal services