Law.com
NYCLA Approves
Ghostwriting Papers for Pro Se Litigants
Daniel Wise
New York Law Journal
May 04, 2010
The New York County Lawyers' Association has issued an ethics opinion approving the practice of lawyers ghostwriting court papers for pro se litigants as permitted under the state's 2009 Rules of Professional Conduct. Allowing lawyers to prepare papers for pro se litigants without disclosing their involvement to either the court or adversaries is permitted under Rule 1.2, which allows lawyers to take on clients under retainers that reasonably limit the scope of their representation, NYCLA's Committee on Professional Ethics concluded in Opinion 742, issued April 16.
Disclosure of a lawyers' involvement, the opinion stated, might result in lawyers having to expand their commitment beyond the bounds of a "limited scope" retainer with the result that clients would be "forced to spend more money than [they] have or lawyers would end up work[ing] free of charge." Either way, the result would undercut the goal of increasing access to justice for those unable to pay for the full services of a lawyer.
The opinion noted, however, that Rule 1.2 requires disclosure to the court and opposing counsel "where necessary." That language, the committee opined, is limited to circumstances where a judge or court has a specific rule requiring disclosure or the non-disclosure would be a misrepresentation. Even in those circumstances the committee advised attorneys that the disclosure requirement could be satisfied by merely stating that a document had been "prepared with the assistance of counsel admitted in New York." However, the committee suggested that where attorneys' behind-the-scene involvement is "substantial," they should disclose their involvement by name because the contours of Rule 1.2 have yet to be settled by the Appellate Division.
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