May a California lawyer ethically limit a representation to ghost-drafting pleadings and conducting settlement negotiations for a litigant who appears in pro per, without disclosing the limited scope to the court?

Plain-English summary

The committee considers a lawyer whose written engagement limits representation to advising a pro per litigant, drafting pleadings the client signs and files, and conducting settlement negotiations. The lawyer is not counsel of record, and the engagement places all court appearances, calendaring, filings, and deadlines on the client.

The committee, following its own Formal Opinion 483 (1995) and DiLoreto v. O'Neill (1991), confirms that limited-scope representation is not per se unethical when the limitation is fully explained and the client consents. The lawyer must comply with Bus. & Prof. Code section 6148's written-agreement requirements (and sections 6147, 6147.5 where applicable).

The committee identifies three sets of ongoing duties. First, under former Rule 3-110 and Nichols v. Keller (1993), the lawyer must alert the client to reasonably apparent collateral legal problems even outside the scope, because between client and lawyer the lawyer is more qualified to identify legal needs. The lawyer need not represent the client on those matters but must direct the client to the possible need for other counsel. Second, the lawyer must comply with conflicts duties under former Rule 3-310 and undivided-loyalty duties under Flatt v. Superior Court (1994); limited representation does not avoid the conflict screen. Third, withdrawal even from limited representation must comply with former Rule 3-700(A)(2)'s no-prejudice rule: notice, time for new counsel, and return of files and unearned fees. The committee also identifies that limited-scope representation is not a prospective limitation of liability under Rule 3-400(A) and does not affect the client's right to file a disciplinary complaint under section 6090.5.

On opposing counsel's recourse, the committee analyzes Code of Civil Procedure section 283 (attorney of record's authority to bind in procedural steps), Blanton v. Womancare (Cal. 1985) (only the client may bind on settlement), and concludes that a non-of-record attorney's authority to negotiate settlement comes from the client's express grant, not from section 283. Opposing counsel may request confirmation of authority. Because the client is appearing in pro per, former Rule 2-100(A) does not bar opposing counsel from communicating directly with the client about all aspects of the litigation, including settlement (Abeles v. State Bar (1973)). The committee identifies the limit on direct communication: opposing counsel may not render legal advice to the pro per client (LACBA Opinions 334, 350). The lawyer and client cannot become co-counsel without engaging in unauthorized practice (LACBA Opinion 483).

On disclosure to the court, the committee finds no California statute, rule, or published California case requiring the ghostwriting lawyer to disclose the lawyer's role. The committee surveys the national debate (Laremont-Lopez (E.D. Va. 1997) on one side; Ricotta v. State of California (S.D. Cal. 1998), ABA Informal Opinion 1414, Iowa, New York, Kentucky, Maine, and Alaska opinions on either side), and concludes that California permits anonymous assistance with pro per pleadings provided the lawyer complies with the underlying truth and merit obligations (Bus. & Prof. Code sections 6068(a)-(d), 6106; former Rules 3-200, 3-210, 5-200; CCP section 128.7).

The committee identifies the lawyer's residual duties when drafting pleadings the client will sign and file: the lawyer must comply with section 128.7's underlying requirements (good-faith inquiry, no improper purpose, non-frivolous legal position) even though the client signs (Lysick v. Walcom (1968)) and the client may face section 128.7 sanctions if the document fails. The committee notes that in federal court the lawyer must comply with that court's ghostwriting rule.

In practice

The opinion holds that, under California's pre-2018 rules and Code of Civil Procedure section 283 as they stood in 1999, a written, informed-consent limited-scope engagement for pro per representation is permitted. The committee directs the lawyer to alert the client to collateral problems, comply with conflicts and confidentiality duties, structure withdrawal to avoid prejudice, and observe section 128.7 in drafting pleadings the client will sign and file. The committee does not require court disclosure under California law and treats the federal-court question as governed by the local rule.

California's professional-conduct rules were revised effective November 1, 2018; California Code of Civil Procedure section 1014.5 was added in 2010 and amended later to clarify limited-scope representation in certain civil matters. CRC Rule 3.36 now permits limited-scope representation in civil cases with court notice procedures, post-dating this opinion. Federal rules and local court rules on ghostwriting have continued to evolve. The committee's analysis predates those developments.

Common questions

Q: Can a California lawyer ghost-draft pleadings for a pro per client without telling the court?

A: Per the opinion, yes, under California law as it stood in 1999. The committee found no rule requiring disclosure, but conditions the conclusion on the lawyer's compliance with CCP section 128.7's substantive requirements and the lawyer's conduct duties under Bus. & Prof. Code sections 6068(a)-(d) and 6106.

Q: Can opposing counsel still talk to the client directly?

A: Per the opinion, yes. Former Rule 2-100(A) does not apply where the client appears in pro per, even when the client is receiving background advice from a lawyer. Opposing counsel may not render legal advice to the pro per client but may discuss any aspect of the litigation.

Q: Can opposing counsel refuse to negotiate with the non-of-record lawyer?

A: Per the opinion, opposing counsel may refuse to negotiate at all, but may not refuse on the ground that the lawyer is not of record. Opposing counsel may request confirmation of the lawyer's authority to act for the client in negotiations.

Q: What ongoing duties does the lawyer have outside the scope?

A: Per the opinion's reading of Nichols v. Keller, the lawyer must alert the client to reasonably apparent legal problems outside the scope and inform the client of the possible need for other counsel. The lawyer need not represent the client on those matters.

Q: Does a limited-scope engagement waive malpractice liability for the work that is performed?

A: Per the opinion, no. Former Rule 3-400(A) bars prospective liability limitations; the scope limitation reduces the work performed but does not limit liability for work that is performed.

Q: Must the lawyer obtain court permission to appear at a settlement conference?

A: Per the opinion's reading of LACBA Formal Opinion 483, yes. A party cannot appear both in pro per and through counsel without court approval; the lawyer must comply with the tribunal's rules.

Background and rules framework

The opinion interprets former California Rules of Professional Conduct 2-100, 3-110, 3-210, 3-310, 3-400, 3-700(A)(2), and 5-200, and Bus. & Prof. Code sections 6068(a)-(e), 6090.5, 6104, 6106, 6147, 6147.5, 6148(a)(2)-(3), 6149, and 6400 et seq., and Code of Civil Procedure sections 128.7 and 283(1). It anchors the limited-scope analysis in Nichols v. Keller (1993), DiLoreto v. O'Neill (1991), Flatt v. Superior Court (Cal. 1994), and Blanton v. Womancare (Cal. 1985), and engages the federal ghostwriting debate through Laremont-Lopez (E.D. Va. 1997) and Ricotta (S.D. Cal. 1998).

Citations and references

Rules of Professional Conduct:

• Former California Rule 2-100 (communication with represented person)
• Former California Rule 3-110 (competence)
• Former California Rule 3-210 (advising violation of law)
• Former California Rule 3-310 (avoidance of conflicts)
• Former California Rule 3-400 (no prospective liability limits)
• Former California Rule 3-700(A)(2) (withdrawal without prejudice)
• Former California Rule 5-200 (truthfulness)

Statutes:

• Bus. & Prof. Code sections 6068(a)-(e), 6090.5, 6104, 6106, 6147, 6147.5, 6148(a)(2)-(3), 6149, 6400 et seq.
• Code of Civil Procedure sections 128.7 (signed pleading certification), 283(1) (attorney's authority)
• Evidence Code section 952
• Fed. R. Civ. P. 11

Cases:

• Abeles v. State Bar, 9 Cal.3d 603 (Cal. 1973), Rule 2-100 applies to represented parties only
• Blanton v. Womancare, Inc., 38 Cal.3d 396 (Cal. 1985), client alone may bind on settlement
• Butler v. State Bar, 42 Cal.3d 323 (Cal. 1986)
• Flatt v. Superior Court, 9 Cal.4th 275 (Cal. 1994), duty of loyalty
• Joseph E. DiLoreto, Inc. v. O'Neill, 1 Cal.App.4th 149 (1991), limited-scope representation permitted
• Houston General Insurance Co. v. Superior Court, 108 Cal.App.3d 958 (1980)
• Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F.Supp. 1075 (E.D. Va. 1997), anonymous assistance criticized
• Lucas v. Hamm, 56 Cal.2d 583 (Cal. 1961), competence standard
• Lysick v. Walcom, 258 Cal.App.2d 136 (1968), CCP section 128.7-equivalent duties
• Miller v. Metzinger, 91 Cal.App.3d 31 (1979)
• Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176 (Cal. 1971), formation of attorney-client relationship
• Nichols v. Keller, 15 Cal.App.4th 1672 (1993), duty to alert outside scope
• Ricotta v. State of California, 4 F.Supp.2d 961 (S.D. Cal. 1998), ghostwriting not contempt-worthy
• Sampson v. State Bar, 12 Cal.3d 70 (Cal. 1974), discipline for unauthorized settlement

Other opinions cited:

• LACBA Formal Opinions 334, 350, 449 (1988), 476 (1995), 483 (1995)
• ABA Informal Opinion 1414
• Alaska Bar Opinion 93-1 (1993)
• Iowa Opinion 94-35 (1995)
• Iowa State Bar Opinion 91-31 (1997)
• Kentucky Bar Opinion E-353 (1991)
• Maine Ethics Commission Opinion 89 (1988)
• New York State Bar Opinion 613

See also

• LACBA Opinion 498: Withdrawal to Avoid Making a Disclosure
• LACBA Opinion 522: Outside Counsel for Corporate Debt Collector
• LACBA Opinion 510: Lawyer Salaried by Financial Planning Company

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010606