Ezel / Ethics Opinions / ABA
ABA 2007-05-05

Can a lawyer ghostwrite court papers for a self-represented litigant without disclosing that help to the court?

Short answer: Yes. The opinion concludes a lawyer may give behind-the-scenes assistance to a pro se litigant, including drafting filings, without disclosing the fact or extent of that help to the court, because the assistance is not material to the merits; it supersedes Informal Opinion 1414.
Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 07-446: Undisclosed Legal Assistance to Pro Se Litigants

Short answer: The opinion concludes that a lawyer may provide behind-the-scenes legal assistance to a litigant who is appearing pro se, including drafting or reviewing written submissions, without disclosing or ensuring the disclosure of the fact or extent of that assistance to the tribunal or adverse parties, so long as the lawyer otherwise complies with the Rules.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses "ghostwriting," a form of unbundled legal service in which a lawyer drafts or reviews documents for a litigant who then files them while appearing pro se. The committee starts from Rule 1.2(c), which lets a lawyer limit the scope of a representation with the client's informed consent, and notes that state and local ethics committees had split three ways: requiring no disclosure, requiring disclosure of the lawyer's identity, or requiring disclosure of at least the fact of assistance, which had been the committee's own earlier middle-ground position under the predecessor Model Code.

The committee resolves the question through materiality. Any duty to see that the litigant discloses the assistance turns on whether the fact of assistance is "material," that is, whether nondisclosure would amount to fraudulent or dishonest conduct implicating Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). It concludes that behind-the-scenes assistance to a pro se litigant is not material to the merits of the litigation. The committee rejects the concern that undisclosed help secures unfair "special treatment," reasoning that effective drafting will be evident to the court while ineffective drafting confers no unfair advantage. It finds nondisclosure is not dishonest under Rule 8.4(c) because the lawyer makes no statement to the forum at all, and may even be obliged under Rules 1.2 and 1.6 not to reveal the representation; only an affirmative statement attributable to the lawyer that the papers were prepared without assistance would be dishonest.

The committee also rejects the argument that a non-appearing lawyer circumvents court rules, such as Rule 11, that require a signer to take responsibility for filings, because those rules apply only when a lawyer actually signs the pleading. The opinion expressly assumes a jurisdiction whose law and court rules do not separately require disclosure, and it supersedes ABA Informal Opinion 1414, which had required disclosure of the fact of assistance.

In practice

Under this opinion, a lawyer who drafts pleadings or other filings for a self-represented litigant is not required by the Model Rules to disclose that help to the court or the other side, assuming no statute or local court rule requires otherwise. The opinion ties the conclusion to the assumption that the jurisdiction does not separately regulate the practice, so the controlling question in any given matter is whether a court rule or law requires disclosure. Because some courts have adopted local rules on ghostwriting since 2007, the page reflects the committee's analysis rather than the rule in any particular forum.

Common questions

Q: Can I draft a complaint for a client who will file it pro se and not tell the court I helped?

A: Under this opinion, yes, absent a contrary court rule. The committee concluded a lawyer may help prepare written submissions "without disclosing or ensuring the disclosure of the nature or extent of such assistance."

Q: Isn't hiding the help dishonest under Rule 8.4(c)?

A: The committee says no. It reasoned that "the lawyer is making no statement at all to the forum regarding the nature or scope of the representation," so nondisclosure is not a misrepresentation; an affirmative statement that the papers were prepared without help would be different.

Q: Does ghostwriting give the pro se litigant an unfair edge?

A: The opinion concludes it does not. It found that the fact of behind-the-scenes assistance "is not material to the merits of the litigation," because effective help is apparent to the court and ineffective help confers no advantage.

Q: Does this change the older ABA position?

A: Yes. The opinion states that "ABA Informal Opinion 1414 is superseded," replacing the earlier view that the fact of assistance had to be disclosed.

Background and rules framework

The opinion interprets Model Rule 1.2(c) (limiting the scope of representation with informed consent) and applies a materiality test drawn from Rules 1.2(d), 3.3(b), 4.1(b), and 8.4(c) (the rules against assisting fraud, lack of candor to a tribunal, failure to disclose a material fact, and dishonesty). It also notes the lawyer's confidentiality duty under Rule 1.6(a), which can affirmatively bar revealing the representation. The committee surveys numerous state and local opinions that had reached differing conclusions before settling on the no-disclosure rule.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.2(c) (limiting scope of representation)
  • ABA Model Rule 1.2(d) (assisting crime or fraud)
  • ABA Model Rule 3.3(b) (candor toward the tribunal)
  • ABA Model Rule 4.1(b) (failure to disclose a material fact)
  • ABA Model Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)
  • ABA Model Rule 1.6(a) (confidentiality)

Cases:

  • Haines v. Kerner, 404 U.S. 519 (1972), liberal construction of pro se filings

Other opinions cited:

  • ABA Informal Op. 1414 (1978): superseded by this opinion
  • Numerous state and local opinions surveyed, including Arizona Op. 06-03, Virginia LEO 1761, and NY State Bar Op. 613

See also

Source