Must a lawyer who ghostwrites pleadings or provides unbundled, limited-scope help to a pro se litigant disclose that assistance to the court?

Plain-English summary

Opinion 713 responds to uncertainty created by a federal magistrate decision, Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., about ghostwriting pleadings for unrepresented litigants. The Committee clarifies how New Jersey's ethics rules apply to limited, unbundled assistance to pro se litigants.

The Committee starts from RPC 1.2(c), which permits limited-scope representation if it is reasonable under the circumstances and the client gives informed consent. It notes that New Jersey adopted Ethics 2000 changes, including the amendment to RPC 1.2(c) and the new RPC 6.5 on short-term limited legal services, reflecting a manifest intent to expand assistance to people of limited means. Permissible limited services range from advice and form completion to drafting pleadings.

On the disclosure question under RPC 3.3 (candor to the tribunal), the Committee surveys the national split: some opinions find no duty to disclose given confidentiality under RPC 1.6(a); some treat ghostwriting as a per se fraud on the court requiring disclosure; and others find a limited duty triggered by terms like substantial or significant assistance. The Committee rejects those imprecise thresholds in favor of an all-the-circumstances approach.

Under that approach, disclosure is not required if the limited assistance is part of an organized R. 1:21-1(e) non-profit program for people of limited means. Disclosure is required when the assistance is a tactic to gain advantage by invoking judicial leniency toward pro se litigants while still reaping the benefits of counsel, or when the lawyer (not the litigant) is effectively in control of the final form of the pleadings and the conduct of the litigation. The duty to disclose is rooted in RPC 3.3(a)(5), RPC 8.4(c), and RPC 8.4(d); where triggered, the disclosure names the attorney and states that there is a limited scope of representation not amounting to an appearance as counsel of record. Even where disclosure is required, the limited representation itself remains fully permissible if RPC 1.2(c) is satisfied. The Committee makes no comment on Federal Rule of Civil Procedure 11, over which it has no jurisdiction.

In practice

The opinion holds that, under RPC 1.2(c) as applied at the time, limited-scope unbundled assistance to a pro se litigant is permissible with informed consent, and that disclosure to the tribunal is required only in three situations: when the assistance is part of an organized R. 1:21-1(e) non-profit program; when it is a tactic to exploit pro se leniency while obtaining the benefits of counsel; or when the lawyer is effectively in control of the pleadings and the litigation. Per the opinion, the duty to disclose is grounded in RPC 3.3(a)(5) and RPC 8.4(c) and (d), and even where it applies the limited representation itself remains permissible. Because this opinion predates the most recent five years, verify the current Rules of Professional Conduct and Court Rules before relying on the specific requirements it describes.

Common questions

Q: Can a New Jersey lawyer draft pleadings for a self-represented litigant?

A: The opinion concludes yes. RPC 1.2(c) authorizes limited-scope representation, including drafting pleadings, if it is reasonable under the circumstances and the client gives informed consent.

Q: Do I have to tell the court I ghostwrote a pro se litigant's papers?

A: Only in three situations the opinion identifies: the help is part of an organized nonprofit program under R. 1:21-1(e); it is a tactic to exploit leniency toward pro se litigants; or you are effectively in control of the pleadings and the litigation. Otherwise, disclosure is not required.

Q: What must the disclosure say when it is required?

A: Per the opinion, the disclosure must include the attorney's name and state that there is a limited scope of representation, not including appearance as counsel of record, under RPC 1.2(c).

Q: Does ghostwriting that requires disclosure violate the Rules?

A: No. The opinion emphasizes that even where disclosure is required, the limited representation itself is fully permissible as long as the requirements of RPC 1.2(c) are met.

Background and rules framework

The opinion interprets RPC 1.2(c) (limited-scope representation with informed consent) and RPC 6.5 (short-term limited legal services), together with RPC 3.3(a)(5) (candor to the tribunal), RPC 1.6(a) (confidentiality), and RPC 8.4(c) and (d), the New Jersey analogs to Model Rules 1.2, 6.5, 3.3, 1.6, and 8.4. It situates these rules within New Jersey's adoption of the ABA Ethics 2000 revisions aimed at expanding access to limited legal assistance.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / NJ RPC 1.2(c) (limited-scope representation; informed consent)
• MR 6.5 / NJ RPC 6.5 (short-term limited legal services)
• MR 3.3 / NJ RPC 3.3(a)(5) (candor to the tribunal)
• MR 1.6 / NJ RPC 1.6(a) (confidentiality)
• MR 8.4 / NJ RPC 8.4(c), (d) (dishonesty; conduct prejudicial to the administration of justice)

Court rules:

• N.J. Court Rule 1:21-1(e) (organized non-profit legal-assistance programs)

Cases:

• Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., Inc., 2007 WL 766349 (D.N.J. March 6, 2007)
• In re Advisory Opinion 544, 103 N.J. 399 (1986), confidentiality and limited representation
• Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001), appellate-brief drafting as substantial assistance
• Ricotta v. State of California, 4 F. Supp. 2d 961 (S.D. Cal. 1998), undisclosed involvement in filings
• Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio Aug. 16, 2000), disclosure of substantial drafting

Other opinions cited:

• ABA Comm. on Ethics and Professional Responsibility Informal Op. 1414 (1978)
• New York State Bar Ass'n Op. 613 (1990) and ABCNY Op. 1987-2 (1987): disclosure of ghostwriting
• LACBA Ops. 502 (1999) and 483 (1995); State Bar of Arizona Op. 05-06 (2005): no duty to disclose
• Iowa Supreme Court Bd. Ops. 94-35 (1995) and 96-31 (1997): per se disclosure

See also

• ABA Formal Op. 07-446: Ghostwriting for Pro Se Litigants
• VA LEO 1874: Ghostwriting for Pro Se Litigants
• MA Bar Ethics Op. 98-1: Ghostwriting for Pro Se Litigants
• OSB Op. 2011-183: Limited-Scope Representation

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2008/acp713-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. Spacing dropped by the mirror's text extraction has been restored; the linked official source controls.

191 N.J.L.J. 302

January 28, 2008

17 N.J.L. 166

January 28, 2008

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

OPINION 713

Advisory Committee on Professional Ethics

Duties of Attorneys Providing Limited Legal Assistance or Unbundled Legal Services to Pro Se Litigants

A recent United States Magistrate decision has raised many questions and uncertainties concerning the degree and type of assistance that may be provided to pro se litigants by attorneys, and the conditions under which such assistance may be given. Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., Inc., 2007 WL 766349 (D.N.J. March 6, 2007) (hereafter Delso). The decision concerns itself with an attorney's ghostwriting of pleadings for an unrepresented litigant. This Advisory Committee on Professional Ethics Opinion provides clarification of how New Jersey ethical rules relate to the provision of legal assistance to unrepresented litigants.

We note at the outset ghostwriting has no precise definition, nor does the word appear anywhere in New Jersey court or ethics rules. Our analysis addresses activities such as drafting of pleadings and other forms of assistance to unrepresented parties.

New Jersey's Rules of Professional Conduct expressly contemplate and authorize legal representation that is limited to a particular activity or group of activities. RPC 1.2(c) permits such limited representation if it is reasonable under the circumstances and the client gives informed consent. Such limited representation has sometimes been termed unbundled legal assistance, connoting the provision of some services but not others.

In its Ethics 2000 process, the American Bar Association (ABA) recommended to the states a variety of changes in the Model Rules of Professional Conduct. See www.abanet.org; Ethics 2000 Commission. Of considerable interest to the ABA were modifications with the potential for increasing the amount and forms of assistance available to people of limited means. Ibid. New Jersey adopted most of these proposed changes, including an amendment to RPC 1.2(c) and a new RPC 6.5, the latter expressly embracing short-term limited legal services and relaxing the traditional RPCs governing conflicts, RPC 1.7, RPC 1.9 and RPC 1.10, essentially stipulating that those provisions apply only when a participating lawyer has actual knowledge of a conflict. These RPCs were at the heart of the ABA Ethics 2000 concern for expanding legal assistance to the unrepresented, and there can be no question that the New Jersey Supreme Court intended that they have applicability in New Jersey.

The informed consent requirement of RPC 1.2(c) emphasizes the client must understand, and agree to, the extent of the limited assistance. Such limited representation can take many forms: investigation; simple advice; brief service such as the communication of a client's position to a third party; negotiation; aid in completing court or other forms; suggestions for how to approach pleadings, briefs, or litigation itself; drafting pleadings; and countless other variants. All are permissible under the New Jersey RPCs, provided the requirements of RPC 1.2(c) are met, and there are no violations of other applicable ethics or court rules. We turn now to analysis of other ethical strictures with some relevance to providing legal assistance to pro se litigants.

First, the Delso opinion and many ethics and court decisions nationally examine attorney obligations under RPC 3.3. The issue is whether, and when, candor toward the tribunal requires an attorney to disclose the fact and nature of assistance. At the outset, we note the full applicability of RPC 1.6(a), the broad duty of confidentiality, to limited representation situations. See generally In re Advisory Opinion 544, 103 N.J. 399 (1986). A client's entitlement to confidentiality provides an initial thrust against disclosure where an attorney has not been retained to render full, extended representation. Consonant with this obligation to maintain confidentiality, some ethics opinions decline to find such a duty to disclose. See Los Angeles County Bar Ass'n Professional Responsibility and Ethics Comm. Op. 502 (1999); Los Angeles County Bar Ass'n Professional Responsibility and Ethics Comm. Op. 483 (1995); State Bar of Arizona Comm. on the Rules of Professional Conduct Op. 05-06 (2005).

At the opposite end of the spectrum are opinions that find that ghostwriting is unethical per se as a fraud upon the court, which can only be remedied by advising the court that the submitted document was prepared by or with the assistance of an attorney. See Iowa Supreme Court Bd. of Professional Ethics and Conduct Op. 94-35 (1995); Iowa Supreme Court Bd. of Professional Ethics and Conduct Op. 96-31 (1997); see also Association of the Bar of the City of New York Comm. on Professional and Judicial Ethics Op. 1987-2 (1987) (requiring disclosure of an attorney's involvement even if the attorney only assists with a one-time simple pleading); New York State Bar Ass'n Comm. on Professional Ethics Op. 613 (1990) (same).

Finally, a number of other states' opinions find a limited duty of disclosure, some using imprecise terms such as substantial, significant or extensive to demarcate the requisite quantum of aid which would trigger the duty to disclose. See ABA Comm. on Ethics and Professional Responsibility Informal Op. 1414 (1978); Alaska Bar Ass'n Ethics Comm. Op. 93-1 (1993); Connecticut Bar Ass'n Comm. on Professional Ethics Op. 98-5 (1998); Delaware State Bar Ass'n Comm. on Professional Ethics Op. 1994-2 (1994); Florida State Bar Ass'n Comm. on Professional Ethics Op. 79-7 (2000); Massachusetts Bar Ass'n Comm. on Professional Ethics Op. 98-1 (1998); New Hampshire Bar Ass'n Ethics Comm., Unbundled Services -- Assisting the Pro se Litigant (1999); Kentucky Bar Ass'n Op. E-343 (1991); Utah State Bar Ethics Comm. Op. 74 (1981). This view has been repeated in various courts as well. See, e.g., Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (drafting an appellate brief is substantial assistance per se); Ricotta v. State of California, 4 F. Supp. 2d 961, 987 (S.D. Cal. 1998) (level of attorney's involvement with court filing without disclosure amounted to unprofessional conduct); Ostevoll v. Ostevoll, 2000 WL 1611123, at 9 (S.D. Ohio Aug. 16, 2000) (pleading prepared in substantial part by an attorney must be disclosed by attorney's signature).

We are unpersuaded such inexact and subjective terms are helpful. We believe that, given the New Jersey Supreme Court's manifest intent to remove impediments to providing at least some assistance to the unrepresented, the better course is to adopt an approach which examines all of the circumstances. Disclosure is not required if the limited assistance is part of an organized R. 1:21-1(e) non-profit program designed to provide legal assistance to people of limited means. In contrast, where such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance, there must be full disclosure to the tribunal. Similarly, disclosure is required when, given all the facts, the lawyer, not the pro se litigant, is in fact effectively in control of the final form and wording of the pleadings and conduct of the litigation. If neither of these required disclosure situations is present, and the limited assistance is simply an effort by an attorney to aid someone who is financially unable to secure an attorney, but is not part of an organized program, disclosure is not required.

The duty to disclose is rooted in RPC 3.3(a)(5) as well as RPC 8.4(c) and (d). These ethics rules simply require candor and fairness toward the tribunal. We emphasize that even where disclosure is required, the limited representation itself is fully permissible as long as the requirements of RPC 1.2(c) are met. When triggered by the described circumstances, disclosure must include the name of the attorney and the fact that there is a limited scope of representation, not including actual appearance as counsel of record in the proceeding, under RPC 1.2(c). The client's involvement in the litigation, and the extent of the attorney's engagement in such circumstances, combined with the duty of candor under RPC 3.3(a)(5), support this limited exception to the blanket confidentiality required by RPC 1.6(a).

We make no comment concerning the possible applicability of Federal Rule of Civil Procedure 11 to such a situation. This Committee has no jurisdiction over questions of federal civil procedure.

We are aware that these situations present competing interests. The interests of extending legal assistance to the unrepresented, preserving confidentiality and minimizing the cost of legal representation are on one side, versus candor toward the tribunal and fairness toward opposing parties on the other. We believe the balance struck in this Opinion best advances the ethical values applicable to limited legal assistance to unrepresented litigants.