May a lawyer ethically “ghost write” a sufficient complaint for the plaintiff to file pro se? This might be attractive to a lawyer when the case appears worthwhile on its face, the statute of limitation is about to run, and the lawyer doesn’t have time to fully evaluate the case. Once the complaint is filed, the lawyer could then enter into an investigative agreement with the client; after investigation, if the lawyer is willing to accept representation, the lawyer can propose an engagement agreement. If the engagement is finalized, the lawyer would then enter an appearance on behalf of the client. While a lawyer might find this to be an efficient way to proceed, she should always be mindful that ghostwriting has limitations depending on the jurisdiction.
ABA Formal Opinion #07-446 (2007) advises that the lawyer need not disclose to the tribunal or adverse parties the lawyer’s role in the representation unless required by applicable law or court rule. See cases cited in footnote 3 to the ABA Opinion. However, a number of opinions have reached the opposite conclusion on the ground that the failure to disclose would be misleading to the tribunal and the adversary and would allow the lawyer rendering limited legal services to avoid responsibility for frivolous claims or could inspire court’s leniency towards what appears to be pro litigant In the absence of clear guidance from cases or ethics opinions, a prudent course would be for the lawyer to disclose the limited engagement agreement in the filing. See Fl. St. Bar Op. #79-7 (reconsideration 2000) (requiring pleading prepared by an attorney for a pro se litigant to state “Prepared with Assistance of Counsel”).
The type of ghost writing mentioned in this blog could be called “strategic ghost writing,” i.e with the purpose of deferring the decision whether to take an apparently financially worthwhile case until the lawyer can conduct an adequate investigation. A more common use of ghost writing is to “unbundle” legal services to assist in delivery of services to individuals unable to afford to pay market legal fees. See Miss. Bar Ethics Op. #261 (2018) (opining that lack of disclosing of the involvement of a lawyer would not be a deception per Rule 8.4(c) because a court would easily understand when a document is prepared by a lawyer.).
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