Ghostwriting not an ethical violation, VSB says

Lawyers will not be in trouble with the Virginia State Bar for ghostwriting pleadings for pro se litigants, but they still have to use care about where those pleadings might be filed, under a new guidance from the bar.

Overruling past interpretations, the VSB Legal Ethics Committee now states that ghostwriting is not inherently dishonest and does not necessarily violate the Rules of Professional Conduct.

A number of lawyers and judges disagree, however, and the committee makes it clear that a lawyer must be aware of the requirements of the court where pleadings will be filed. Many federal judges condemn legal ghostwriting.

The VSB’s change in stance comes in Legal Ethics Opinion 1874, approved on July 28.

The change was driven by a desire to enhance access to justice for those who cannot afford to hire a lawyer to go to court for them. Legal aid groups and others concerned about the scarcity of legal services for the poor say providing piecemeal legal services can help a needy litigant get his foot in the courthouse door.

Facing a continuing struggle for sufficient funds, legal aid organizations have increasingly recognized that “the unbundling of legal services is a critical component in constructing a more effective and efficient triaging system for meeting the poor’s civil legal needs,” wrote legal aid lawyer John E. Whitfield on behalf of the Association of Virginia Legal Aid Programs.

“The existing ghostwriting constraints … have been a perpetual thorn in the side for us,” Whitfield said in a letter to the VSB.

Whitfield’s letter was among 13 written comments received by the VSB on the ghostwriting issue, eight in favor of the change and five opposed.

Opponents warned of “stealth lawyers” who would lower the quality of representation and evade regulation by the VSB.

One lawyer – corporate counsel for a federal mortgage bank – pointed to abuses by ghostwriting lawyers in the Washington court system.

Writing for himself and not his undisclosed employer, Douglas S. Durkin said ghostwriting is “encouraged, rampant, and more frequently abused than put to bona fide use” in D.C. Superior Court.

Ghostwriting has commonly been used “to promote not only frivolous litigation, but oftentimes to promote positions that are outright fraudulent, fabricated and often filed to justify demands for cash settlement of the fabricated claim,” Durkin said about cases against his federal bank.

Ghostwritten pleadings also hamper proceedings in Washington’s landlord and tenant court, Durkin added.

“In my own personal experience I have yet to see a single ghostwritten pleading that was not filed without some dilatory, malevolent or misleading purpose,” Durkin wrote.

Virginia Beach insurance defense lawyer George J. Dancigers is another opponent of ghostwriting who voiced his concerns to the VSB.

Acknowledging the need to improve legal services for the poor, Dancigers nonetheless warned that preparing papers for pro se litigants “really messes with our whole idea of an open legal system” and jeopardizes the status of lawyers as a self-regulated profession.

“Stealth lawyers” are not the answer to the access to justice issue, Dancigers said in an interview.

In his letter to the VSB, Dancigers said ghostwriting lawyers “will inevitably devalue and diminish quality, justice and help create less respect for our legal system.”

The VSB committee acknowledged such concerns, but said the advantages of ghostwriting services outweigh the dangers.

Whether a litigant has behind-the-scenes help is not material to the merits of the litigation, according to the VSB panel.

The VSB committee affirmed its belief that non-disclosure of the lawyer’s assistance is not an act of dishonesty, fraud, deceit or misrepresentation prohibited by Rule 8.4(c). Nor is a ghostwriting lawyer assisting the pro se litigant in illegal or fraudulent conduct in violation of Rule 1.2(c), the committee said.

Nor is a lawyer always required to disclose the backstage help.

It is not practical for a lawyer to ensure that a court is informed of the lawyer’s assistance after the lawyer-client relationship has ended and the lawyer has no control over what pleadings are actually filed with the court, the panel said.

The ghostwriting lawyer also must be mindful of the obligation not to assist a litigant in preparing frivolous pleadings, the committee said.

The committee rejected the concern that the extra consideration given to pro se litigants will be abused if a lawyer is secretly involved. Special leniency is needed only when pleadings are obscure, the panel reasoned, and a lawyer’s involvement can only improve clarity.

The opinion arises from an inquiry from a law firm participating in a pre-paid legal services plan where a member requested help with pleadings in general district and juvenile and domestic relations courts.

The law firm would have a free hand to provide help behind the scenes and was under no obligation to see that the court was notified of its help, the VSB committee said.

Nevertheless, lawyers should avoid sending their clients into unfriendly courts armed with ghostwritten pleadings, the panel said.

Based in part on a 1997 decision by Norfolk U.S. District Judge Henry C. Morgan, lawyers are “now on notice” that ghostwriting “may be forbidden in some courts, and should take heed, even if such conduct does not violate any specific standing rule of court,” the VSB ethics panel said.