Can a lawyer draft pleadings or otherwise substantially help a litigant who appears 'pro se' without telling the court the lawyer is involved?

Plain-English summary

The Committee addressed "ghost-lawyering" (also called ghostwriting): a member of the bar giving substantial legal assistance, by drafting or otherwise, to a party ostensibly appearing pro se, with the lawyer's actual or constructive knowledge that the assistance will not be disclosed to the court. The opinion defines the practice and reaches a disclosure-required conclusion. Not every form of help counts: informally giving limited legal advice to friends and family, answering telephone inquiries about potential legal issues, completing a single preprinted form, or a legal-aid or government program's support of self-help efforts is not "substantial assistance" and is not ghost-lawyering.

The Committee concluded that ghost-lawyering is unethical unless the ghost-lawyer's assistance and identity are disclosed to the court, by the ghost-lawyer's signature under Rule 11 on every paper for which the ghost-lawyer gave substantial assistance by drafting or otherwise. It grounded that conclusion in several rules: undisclosed ghostwriting is a misrepresentation to the court that violates the duty of candor (NRPC 3.3 and Rule 11), and it can violate NRPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The opinion acknowledged a nationwide debate and a contrary view, noting that the ABA, in Formal Opinion 07-446 (2007), concluded that undisclosed assistance to a pro se litigant is not a dishonest misrepresentation requiring disclosure; the Nevada Committee took the opposite position and required disclosure. The opinion recognized a "practical necessity" exception for bona fide not-for-profit legal-aid and government programs (such as the Legal Aid Center of Southern Nevada and similar court-annexed programs operating under Supreme Court Rule 15), reflecting the comparative lack of lawyers available to serve pro se litigants of modest means.

On the remaining questions, the opinion set out the opposing attorney's remedy and obligations. An appearing attorney who suspects or discovers ghost-lawyering may move the court to exercise its discretion to (A) require the pro se litigant to disclose whether a ghost-lawyer is assisting, (B) if so, require disclosure of the ghost-lawyer's identity, and (C) require the ghost-lawyer to appear and sign all pleadings, motions, and briefs the ghost-lawyer assisted. The appearing attorney must treat the ostensibly pro se litigant as "unrepresented" for purposes of the Rules of Professional Conduct, with two consequences: communicating with the litigant is not an ex parte contact prohibited by NRPC 4.2, and the attorney must comply with NRPC 4.3 governing communications with unrepresented persons. Finally, the same framework applies to ghost-lawyering in a non-litigation setting: it is unethical unless the ghost-lawyer's assistance and identity are disclosed in writing to the other attorney in the transaction, with that disclosure indicating whether the other attorney must communicate about the transaction with the ghost-lawyer, the unrepresented party, or both.

Currency note

This opinion's operative version was revised in 2009. It takes a disclosure-required position on ghostwriting that diverges from the view many jurisdictions and the ABA have since taken: ABA Formal Opinion 07-446 (2007) concluded that a lawyer may provide undisclosed assistance to a pro se litigant without violating the rules, and the trend toward "unbundled" or limited-scope representation has continued. Treat this page as a statement of Nevada's 2009 position and verify the current Nevada rules, court rules, and any later guidance before relying on the disclosure requirement.

In practice

The opinion holds that, under the Nevada rules as revised in 2009, a lawyer who gives substantial drafting or other assistance to a litigant appearing pro se must, to avoid an ethics violation, disclose that assistance and the lawyer's identity to the court through a Rule 11 signature; informal or limited help and bona fide legal-aid/government self-help programs are excepted. An opposing lawyer who suspects ghostwriting may ask the court to compel disclosure and must treat the apparent pro se party as unrepresented under NRPC 4.3 (with NRPC 4.2 not barring direct contact). Because Nevada's disclosure-required position differs from the ABA's later view, confirm the current rule before acting.

Common questions

Q: Can a lawyer draft a pro se litigant's pleadings without signing or disclosing it to the court?

A: Per the opinion, no; substantial undisclosed assistance is "ghost-lawyering" and is unethical unless the ghost-lawyer discloses the assistance and identity by signing the relevant papers under Rule 11.

Q: Does giving a friend quick legal advice or filling out one form count?

A: No. The opinion states that informal limited advice to friends and family, telephone inquiries, completing a single preprinted form, and bona fide legal-aid or government self-help programs are not "substantial assistance" and are not ghost-lawyering.

Q: What can the opposing lawyer do about suspected ghostwriting?

A: The opinion says the appearing attorney may move the court to require the pro se litigant to disclose whether a ghost-lawyer is assisting, to disclose that lawyer's identity, and to require the ghost-lawyer to appear and sign the papers they helped prepare.

Q: How should a lawyer communicate with an apparently pro se party who has a ghost-lawyer?

A: The opinion concludes the appearing attorney must treat the party as unrepresented: NRPC 4.2 does not bar the communication, but the attorney must follow NRPC 4.3 governing dealings with unrepresented persons.

Background and rules framework

The opinion interprets NRPC 3.3 (candor toward the tribunal) and Rule 11, NRPC 8.4(c) (dishonesty), NRPC 4.2 (communication with represented persons) and NRPC 4.3 (communication with unrepresented persons), and NRPC 1.2/1.16 on the scope of representation, in the context of undisclosed assistance to pro se litigants, against a body of federal cases and out-of-state ethics opinions and the ABA's contrary Formal Opinion 07-446.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 / Nev. RPC 3.3 (candor toward the tribunal) and Rule 11
• Model Rule 8.4 / Nev. RPC 8.4(c) (dishonesty, fraud, deceit, misrepresentation)
• Model Rule 4.2 / Nev. RPC 4.2 (communication with represented persons)
• Model Rule 4.3 / Nev. RPC 4.3 (dealing with unrepresented persons)

Cases:

• In re Mungo, 305 B.R. 762 (D.S.C. 2003), ghostwriting and candor to the court
• Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001), undisclosed assistance to a pro se appellant
• Johnson v. Board of County Commissioners, 868 F. Supp. 1226 (D. Colo. 1994)

Other opinions cited:

• ABA Formal Op. 07-446 (2007): the contrary view that undisclosed assistance need not be disclosed
• LACBA Ethics Op. 502 (1999); Florida Bar Ethics Op. 79-7; numerous state opinions

See also

• ABA Formal Op. 07-446: undisclosed assistance to pro se litigants (the contrary view)
• ABA Formal Op. 472: communicating with a person receiving limited-scope representation

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/opinion_34.pdf