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No green light to ‘ghostwrite’

Deborah Elkins//September 23, 2014

No green light to ‘ghostwrite’

Deborah Elkins//September 23, 2014//

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The Virginia State Bar may have softened its stance on lawyers “ghostwriting” pleadings for pro se litigants, but a new judicial opinion reminds lawyers to back away from the keyboard if the litigant is in federal court.

In fact, Legal Ethics Opinion 1874, issued July 28, pointedly reminds lawyers to know the position of the judge or court in which pleadings are filed. An ethics opinion saying certain ghostwriting assistance does not violate Virginia Rules of Professional Conduct does not mean a lawyer or pro se litigant won’t get in trouble in a particular court, especially a federal court.

A Roanoke bankruptcy judge reiterated the warning in an Aug. 29 decision rejecting a pro se debtor’s motion for sanctions against a mortgage company and its lawyer for an alleged violation of the automatic stay in bankruptcy.

When questioned by the court, the debtor testified that although she had spoken to three different legal aid attorneys about the pending matter, she did not receive any assistance in drafting her motion, and she conducted her own legal research on Bankruptcy Rule 9011.

Judge Paul M. Black was skeptical.

In a footnote, the judge said he accepted the testimony of debtor Doris W. Tucker that she received no undisclosed assistance on her sanctions motion.

“However, given nature of the Motion and the manner in which it was drafted, it raised the suspicion of having been ‘ghost-written,’” Black said.

He observed that the Virginia State Bar recently released LEO 1874, which found that ghostwriting for pro se litigants is “not objectionable in certain circumstances.”

Then the judge issued his caution: “To the extent that the practicing bar may intend to rely on LEO 1874 in the future to “ghost-write” in this Court, all counsel should be aware that this Court takes a different view. This Court agrees with those courts that find, at a minimum, the practice of ghost-writing transgresses counsel’s duty of candor to the Court and such practice is expressly disavowed.”

Black denied the motion, saying in In re: Tucker that even if Rule 9011 applied in this situation, the lender and its lawyer did not violate the bankruptcy discharge injunction of 11 U.S.C. § 524.

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