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Ghostwriting by Lawyers Still OK — Sort Of

Posted by Frank Steinberg | Jan 29, 2008 | 0 Comments

A while back we posted on the ruling of a NJ federal magistrate judge who criticized an attorney for drafting documents for a pro se litigant that were submitted to the court under the litigant's signature.  The magistrate found that this "ghostwriting" might violate ethical rules that require a lawyer to act with candor towards a court.

Now the issue has been clarified by a committe of the NJ Supreme Court.  According to Law.com:

In a formal opinion meant to calm nerves, the Advisory Committee on Professional Ethics [of the NJ Supreme Court] says it's ethical, in limited circumstances, for a lawyer to draft pleadings and give other "unbundled" legal assistance to pro se parties without telling the court.  

Opinion 713 says that ghostwriting is impermissible and the attorney's participation must be disclosed where it is intended to achieve a tactical advantage by asking the court to judge an attorney's work product under the lenient standard traditionally accorded to pro se litigants.  Where, however, the attorney's participation in the background is merely intended to assist someone who could not otherwise afford an attorney, the attorney's participation need not be disclosed.

Left unresolved by the Committee: whether the ghostwriting practice violates Fed.R.Civ.P. 11, which requires attorneys to sign pleadings and stand behind their content.

Opinion 713 is short and to the point.  It's worth the time of all NJ attorneys, especially those who litigate.  It is noteworthy for its intelligent balancing of conflicting policy considerations, and it should help to settle the law on the ghostwriting issue in a sensible and realistic way. 

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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