Must a Virginia lawyer who ghostwrites or reviews pleadings for a pro se litigant disclose that assistance to the court?

Plain-English summary

A law firm under a prepaid legal services plan agreed to review pro se litigants' pleadings on the condition that the litigant send the court a letter disclosing the firm's review. The committee uses that scenario to revisit its older guidance and concludes that, absent a court rule or law requiring disclosure, there is no ethical obligation to notify the court of a lawyer's assistance to a pro se litigant. To the extent LEOs 1127, 1592, 1761, and 1803 are inconsistent, they are overruled.

The committee reexamines LEO 1127 and LEO 1592, which had relied on former DR 7-105(A) (now Rule 3.4(d)) and on the premise that a court rule required disclosure of a pleading's drafter. It finds no such rule of procedure: Virginia and federal rules require a pleading to be signed by counsel of record or by the unrepresented party, and in the scenario the litigant signs and files pro se. Because no standing rule requires the drafter's identity, Rule 3.4(d) (and former DR 7-105(A)) is not triggered, and the older opinions in effect counseled against violating a nonexistent rule. The committee also rejects the view that nondisclosure is a misrepresentation, citing Virginia authority that a lawyer who prepares a motion the litigant signs and files pro se does not thereby enter an appearance (Walker v. American Ass'n of Prof. Eye Care, 268 Va. 117 (2004)), and aligning with ABA Formal Op. 07-446.

The committee grounds the result in Rule 1.2(b), which allows a lawyer to limit the objectives of a representation with the client's consent after consultation. It holds that the fact a pro se litigant received behind-the-scenes help is not material to the merits and need not be disclosed under Rules 1.2(c), 3.3, 4.1, or 8.4(c). The committee tempers this with duties that still apply: the lawyer must be competent under Rule 1.1, must not assist a frivolous filing under Rule 3.1, must meet Rule 1.2's consultation requirement by explaining the advantages and disadvantages of limited versus full representation, and, as part of competence, should research whether the particular court treats ghostwriting as improper or as an appearance, because some federal courts in Virginia have criticized the practice (citing Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075 (E.D. Va. 1997)).

In practice

Under the Virginia rules as they stood when the opinion issued, a lawyer may provide limited-scope assistance to a self-represented litigant, including reviewing or drafting a pleading the litigant files pro se, without disclosing that assistance to the court, absent a court rule or law requiring disclosure. The opinion holds that such nondisclosure is not dishonest under Rules 3.3 or 8.4(c) and not a failure to disclose a material fact under Rule 4.1, and it overrules LEOs 1127, 1592, 1761, and 1803 to the extent they held otherwise. The opinion holds that the lawyer must still meet Rule 1.1 competence, must not prepare a frivolous filing under Rule 3.1, must satisfy Rule 1.2's consultation requirement about the limits of the engagement, and, as part of competence, should determine whether the specific court treats ghostwriting as improper or as an appearance. The opinion adds that a lawyer may advise the litigant to insert a statement that the document was prepared with the assistance of a Virginia lawyer, but should omit it if the client objects, because the fact of assistance may be confidential under Rule 1.6(a).

Common questions

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

A: No, unless a court rule or law requires it. The opinion concludes that the Virginia Rules impose no duty to notify the court of a lawyer's behind-the-scenes assistance to a self-represented litigant, and overrules LEOs 1127 and 1592 to the extent they required disclosure.

Q: Is undisclosed ghostwriting dishonest under the candor or misconduct rules?

A: The opinion concludes it is not. It holds that nondisclosure of the fact of assistance is not a false statement under Rule 3.3, not dishonesty under Rule 8.4(c), and not a failure to disclose a material fact under Rule 4.1, because the assistance is not material to the merits of the litigant's position.

Q: What duties still apply when I draft for a pro se litigant?

A: The opinion holds the lawyer must be competent (Rule 1.1), must not prepare a frivolous filing (Rule 3.1), must consult with the client about the advantages and disadvantages of limited versus full representation (Rule 1.2), and, as part of competence, should research how the particular court treats ghostwriting.

Q: What if I am practicing in a court that forbids ghostwriting?

A: The opinion notes that some federal courts in Virginia have criticized ghostwriting and that whether a court treats the assistance as an "appearance" is a question of law beyond the committee's purview. As part of the duty of competence, the lawyer should determine the particular court's rules and decisions and advise the client accordingly.

Background and rules framework

The opinion interprets Rule 1.2(b) and (c) of the Virginia Rules of Professional Conduct (Model Rule 1.2), permitting a lawyer to limit the scope of a representation with the client's informed consent, alongside the candor and honesty rules, Rules 3.3, 4.1, and 8.4(c) (Model Rules 3.3, 4.1, 8.4), and the duty not to disregard a tribunal's standing rules, Rule 3.4(d) (formerly DR 7-105(A)). It also applies the competence rule, Rule 1.1, and the meritorious-claims rule, Rule 3.1. The committee aligns Virginia with ABA Formal Opinion 07-446, which concluded that undisclosed legal assistance to a pro se litigant need not be revealed absent a rule requiring it.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2(b), (c) / Va. Rule 1.2(b), (c) (limiting scope of representation)
• Model Rule 1.1 / Va. Rule 1.1 (competence)
• Model Rule 3.1 / Va. Rule 3.1 (meritorious claims; no frivolous filings)
• Model Rule 3.3 / Va. Rule 3.3 (candor toward the tribunal)
• Model Rule 3.4(d) / Va. Rule 3.4(d) (compliance with a tribunal's standing rules; formerly DR 7-105(A))
• Model Rule 4.1 / Va. Rule 4.1 (truthfulness in statements to others)
• Model Rule 8.4(c) / Va. Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation)

Cases:

• Walker v. American Ass'n of Prof. Eye Care, 268 Va. 117, 597 S.E.2d 47 (2004), drafting a motion the client signs and files pro se is not an appearance
• Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075 (E.D. Va. 1997), federal court criticism of ghostwriting
• In re Fengling Liu, 2011 U.S. App. LEXIS 23326 (2d Cir. 2011), ghostwriting found not to be misconduct on the facts

Other opinions cited:

• ABA Formal Op. 07-446 (2007): undisclosed assistance to a pro se litigant need not be disclosed absent a rule requiring it
• Va. LEOs 1127, 1592, 1761, 1803: overruled to the extent inconsistent with this opinion

See also

• VSB Ethics Op. 1869: Pro Se Self-Help Centers and Rule 6.5
• VSB Ethics Op. 1872: Virtual Law Office and Executive Office Suites

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1874.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEO 1874: LIMITED SCOPE REPRESENTATION—REVIEWING PLEADINGS FOR PRO
SE LITIGANTS—SUBSTANTIAL ASSISTANCE AND “GHOSTWRITING”
Law Firm has contracted with a pre-paid legal services plan (“Plan”) to review and
comment to Plan Members on certain documents submitted to Law Firm by Plan Members.
“Plan Members” or “Members” are persons who contract with the Plan for access to services
provided by Law Firm. Law Firm is compensated by the Plan for this document review service
(and a wide range of other designated services) on a membership per capita basis. 1 In addition to
the services designated for payment on a membership per capita basis, the Plan allows a Member
to request certain other legal services by the Law Firm, including representation before tribunals,
on a discounted hourly fee-for-service basis in which the fee is paid by the Member to the Law
Firm.
A Member requests Law Firm to review and provide legal advice on a Warrant In Debt
with a Bill of Particulars that the Member has prepared for pro se filing in a General District
Court and a petition for a change of custody that the Member has prepared for filing pro se in a
Juvenile and Domestic Relations District Court. A review of these documents may fall under the
designated document review service described above for which Law Firm is paid on a capitated
basis. Law Firm agrees to review and provide advice on these documents, provided the Member
agrees to transmit a letter to the court at the time of the filing of the documents that includes this
language:
At the request of [Member] Law Firm has reviewed the attached pleading or
document or a version thereof that [Member] has informed Law Firm that he/she
intends to file in this court pro se. Law Firm has provided legal advice to
[Member] regarding the pleading or document. Member has neither retained Law
Firm to represent [Member] before this court in the proceeding initiated by the
attached pleading or a version thereof nor has Law Firm agreed to represent
[Member] in such proceeding. This letter is merely notice to the court that Law
Firm has reviewed and provided legal advice to [Member] with regard to the
attached pleading or a version thereof to assist [Member] in accurately presenting
his/her claim to the court in the proceeding.
Questions Presented
You have asked the Committee to address these questions:
1. Has Law Firm fully satisfied its ethical obligations of notice to the court as described in LEOs
1127, 1592, 1761 and 1803 by the actions described above?
For the reasons set out in this opinion, absent a court rule or law to the contrary, there is
no ethical obligation to notify the court of the lawyer’s assistance to the pro se litigant. To the
extent that LEOs 1127, 1592, 1761 and 1803 are inconsistent with this opinion, they are
overruled.
1

Law Firm’s compensation is based on the number of members residing in the Law Firm’s state, not on the number
of times a Member calls Law Firm for the designated service.

LEO 1874
Page 2
2. Does Law Firm have an affirmative obligation to determine if the pleading or a version
thereof was filed and the letter transmitted to the court with it?
No.
3. If Law Firm determines that the pleading or a version thereof was filed without the letter,
does Law Firm have an obligation to transmit a similar notice to the court?
No.
4. Does Law Firm have an obligation to determine if the pleading was filed in the form reviewed
by the Law Firm and to advise the tribunal if any change was made prior to its filing?
No.
5. Does Law Firm have an obligation to determine in advance whether or not the court in which
the pleading or document will be filed will consider the notice to be an appearance and Law Firm
ruled counsel of record and then so notify the Member prior to filing?
The question of whether the assistance provided to a pro se litigant constitutes an
“appearance” is a question of law beyond the purview of this Committee. A lawyer owes a duty
of competence to a client, even if the representation has been limited by agreement. This would
include determining a particular court’s rules, decisions or policies in regard to “ghostwriting” or
providing undisclosed assistance to pro se litigants and advising a pro se litigant of any
applicable law.
6. Does Law Firm have an obligation to appear as counsel of record in the proceeding even if
Member refuses to engage Law Firm or compensate Law Firm on the discounted fee-for-service
basis as provided in the Plan?
Probably not, but this depends on whether the court has deemed the lawyer to have
entered an appearance on behalf of the Member. See discussion below.
7. Does Law Firm have an obligation to determine if the opposing party or parties to the
proceeding are represented by counsel and, if so, to provide counsel with a similar notice?
No. Because the representation in your hypothetical will have terminated, no further
ethical obligations are owed.
8. Would any answer to the questions above change if Member directly compensated Law Firm
for the requested review on a fee-for-service basis if the review was not covered under the
capitated payment portion of the Plan?
No.
DISCUSSION
Question 1 assumes that Law Firm has an obligation to notify the court if it has provided
assistance to a member that seeks a document review of a pleading that the member has prepared
and intends to file pro se. This assumption appears to be based on the Committee’s prior

LEO 1874
Page 3
guidance in Legal Ethics Opinions 1127 and 1592. The Committee will review and analyze
each.
Legal Ethics Opinion 1127
In LEO 1127, the Committee was asked whether it is ethically permissible for a lawyer to
advise and assist a pro se litigant in pending employment litigation by providing legal advice,
legal research, recommendations for courses of action to follow in discovery and redrafting of
documents prepared by the litigant himself. The Committee opined that there was nothing in the
Code of Professional Responsibility that prohibited a lawyer from rendering such assistance to a
pro se litigant. However, in LEO 1127, the Committee pointed to former DR 7-105(A), which
requires that a lawyer shall not disregard or advise his client to disregard a standing rule of a
tribunal or a ruling of a tribunal made in the course of a proceeding. Rule 3.4(d) of the current
Rules of Professional Conduct adopts the identical language. Rule 3.4(d) is violated when a
lawyer knowingly disregards “a standing rule or a ruling of a tribunal made in the course of a
proceeding.” (Emphasis added). LEO 1127 explains that the lawyer cannot disregard a court’s
rule or requirement that the identity of the drafter of a pleading be disclosed. While this may be
a correct statement of an ethics rule, the rules of procedure in state and federal court generally do
not require the identification of a lawyer who prepares a pleading for a pro se litigant. 2 The rules
of procedure require that a pleading be signed by a lawyer admitted to practice before that court,
or by the unrepresented party. 3 In your hypothetical, the pro se litigant signs and files the
pleading, not the lawyer. In effect, LEO 1127 advises lawyers to avoid violating a non-existent
rule of procedure. Absent a standing rule of procedure that requires disclosure of the drafter of a
pleading, who does not sign that pleading nor enter an appearance as counsel of record, neither
Rule 3.4(d) nor former DR 7-105(A) comes into play.
By way of example, United States District Court Judge Henry Morgan held:
The Court believes that the practice of lawyers ghost-writing legal documents to
be filed with the Court by litigants who state they are proceeding pro se is
inconsistent with the intent of certain procedural, ethical, and substantive rules of
the Court. While there is no specific rule that prohibits ghost-writing, the Court
believes that this practice (1) unfairly exploits the Fourth Circuit's mandate that
the pleadings of pro se parties be held to a less stringent standard than pleadings
drafted by lawyers, see, e.g., White v. White, 886 F.2d 721, 725 (4th Cir. 1989)
(citations omitted), (2) effectively nullifies the certification requirement of Rule
11 of the Federal Rules of Civil Procedure (“Rule 11”), and (3) circumvents the
withdrawal of appearance requirements of Rule 83.1(G) of the Local Rules for the
United States District Court for the Eastern District of Virginia (“Rule 83.1(G)”).
Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1077-78
(E.D. Va. 1997).

2

11 U.S.C. §110 requires that non-lawyer bankruptcy petition preparers sign and make certifications on the petition
prepared for a pro se debtor.
3
Va. S. Ct. R. 1:4(c): “Counsel or an unrepresented party who files a pleading shall sign it and state his address.”

LEO 1874
Page 4
In this case, there was no rule of procedure requiring that the identity of the drafting
attorney be disclosed, as discussed and assumed in LEO 1127. Further, it is more likely that the
lawyers chastised by Judge Morgan in Laremont-Lopez reasonably believed that they were acting
in good faith and did not knowingly disregard any standing rules in the federal court. Without a
rule of procedure prohibiting their conduct, how could they know? The attorneys in this case
maintained that they were retained by the plaintiffs for the discrete limited purpose of drafting
the complaints. They argued that at the time the complaints were filed their representation of the
plaintiffs had terminated, and thus, it was appropriate for the plaintiffs to sign the pleadings as
unrepresented litigants. In short, their position is that they did not sign the pleadings because
they no longer represented the plaintiffs. Laremont-Lopez, supra, 968 F. Supp. at 1078. It is
hard to question this argument. Indeed, Judge Morgan allowed that the attorneys’ reasoning was
“not at odds with the plain language of Rule 11” but nevertheless held that they had
circumvented the rule by not having signed the pleadings. But this still begs the question of
whether the lawyers in this case had knowingly disregarded any standing rule that required
disclosure of their identity as the drafter of pleadings filed by the pro se litigants. As to the
lawyers in Laremont-Lopez, the court found that they had not:
The Court FINDS that the practice of ghost-writing legal documents to be filed
with the Court by litigants designated as proceeding pro se is inconsistent with the
procedural, ethical and substantive rules of this Court. While the Court believes
that the Attorneys should have known that this practice was improper, there is no
specific rule which deals with such ghost-writing. Therefore, the Court FINDS
that there is insufficient evidence to find that the Attorneys knowingly and
intentionally violated its Rules. In the absence of such intentional wrongdoing, the
Court FINDS that disciplinary proceedings and contempt sanctions are
unwarranted.
Laremont-Lopez, supra, 968 F. Supp. at 1079-80. (Emphasis added). Judge Morgan found that
the lawyer’s conduct was inconsistent with the rules but did not find that they had violated any of
those rules. However, lawyers are now on notice, because of Laremont-Lopez and other federal
court cases, that “ghostwriting” may be forbidden in some courts, and should take heed, even if
such conduct does not violate any specific standing rule of court.
Legal Ethics Opinion 1592
In this opinion, the Committee addressed a situation in which an attorney was retained by an
uninsured motorist insurance carrier to defend the carrier in an action in which the uninsured
motorist ("Defendant Motorist") has appeared pro se. Although Attorney A had not entered an
appearance on behalf of the Defendant Motorist, the Defendant Motorist consulted with Attorney
A, and Attorney A assisted Defendant Motorist and/or gave Defendant Motorist advice in regard
to responding to discovery requests propounded by the Plaintiff in the case. The Committee
opined:
Under DR 7-105(A), and indications from the courts that attorneys who draft
pleadings for pro se clients would be deemed by the court to be counsel of record
for the pro se client, any disregard by either Attorney A or Defendant Motorist of
a court's requirement that the drafter of pleadings be revealed would be violative
of that disciplinary rule. Such failure to disclose would also be violative of DR 7-

LEO 1874
Page 5
102(A)(3). Further, such failure to disclose Attorney A's substantial assistance,
including the drafting of pleadings and motions, may also be a misrepresentation
to the court and to opposing counsel and, therefore, violative of DR 1-102(A)(4).
The committee cautions that Attorney A may wish to obtain Defendant Motorist's
assurance that he will disclose A's assistance to the court and adverse counsel.
See LEO #1127; Association of the Bar of the City of New York Opinion 1987-2
(3/23/87), ABA/BNA Law. Man. on Prof. Conduct, 901:6404.
(Emphasis added). LEO 1592 does not cite any specific cases for the italicized language nor was
this conclusion reached in any of the “ghostwriting” opinions rendered in the federal courts in
the Eastern District of Virginia. Moreover, controlling authority in state court says just the
opposite. Walker v. American Ass’n of Prof. Eye Care, 268 Va. 117, 597 S.E.2d 47, (2004)
(lawyer who assisted pro se plaintiff with preparation of motion for judgment signed only by
plaintiff as a pro se litigant and filed pleading with court together with filing fee did not appear
on plaintiff’s behalf as counsel of record). Without any supporting authority, LEO 1592 reaches
the conclusion that a lawyer who assists a pro se litigant by preparing a pleading or providing her
with legal assistance is deemed by the court to have entered an “appearance” as counsel of record
on behalf of that person. That conclusion is incorrect, but at least one circuit court has deemed
the litigant “represented by counsel” when a lawyer prepared for a client a motion for judgment
for the client to sign and proceed pro se. See Walker, supra.
LEO 1592 concluded that the lawyer violated DR 7-105(A) following the approach taken
in LEO 1127. The opinion also cites former DR 7-102(A)(3), which states: “In his
representation of a client a lawyer shall not . . .conceal or knowingly fail to disclose that which
he is required by law to reveal.” Application of this rule under these circumstances raises some
questions. First, as the attorney argued in Laremont-Lopez, the lawyer-client relationship was
concluded when the “ghostwriting” attorney completed the drafting of the pleading. So when the
pro se litigant filed his pleading with the court, he was not represented by counsel. DR 7102(A)(3) on its face speaks to misconduct by a lawyer in the course of representing a client.
The rule seems inapplicable to the circumstances presented in the opinion. Second, was the
lawyer “required by law” to disclose that he or she assisted the pro se litigant? As stated in the
discussion of LEO 1127, there was no rule violated when the attorney failed to disclose his
identity as the drafter of the pleading. Judge Morgan was frustrated by the fact that the attorney
had circumvented some other rules, but made no finding that the rules had been violated by the
“ghostwriting” attorney and acknowledged that there was no rule forbidding “ghostwritten”
pleadings. Finally, LEO 1592 cites DR 1-102(A)(4) as having been violated when the lawyer
failed to disclose his “substantial assistance” to an unrepresented defendant motorist. This rule is
nearly identical to current Rule 8.4 (b): “A lawyer shall not. . .engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer’s fitness to
practice law.” Application of this rule assumes, of course, that the “ghostwriting” lawyer is
being dishonest or deceitful for not having disclosed his assistance to the pro se litigant, even
though no standing court rule or law required such disclosure.

LEO 1874
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Other Bar Opinions
State and local ethics committees have reached different conclusions on whether
disclosure of a lawyer’s assistance to a pro se litigant is required by the Rules of Professional
Conduct. Some have opined that no disclosure is required. 4 Others, in contrast, have expressed
the view that the identity of the lawyer providing assistance must be disclosed on the theory that
failure to do so would both be misleading to the court and adversary counsel, and would allow
the lawyer to evade responsibility for frivolous litigation under applicable court rules. 5 The
ABA’s Standing Committee on Ethics and Professional Responsibility took the “middle ground”
approach adopted in LEOs 1127 and 1592 stating that disclosure of at least the fact of legal
assistance must be made to avoid misleading the court and other parties, but that the lawyer
providing the assistance need not be identified. 6 The ABA has since taken the position, as have
other jurisdictions, that the fact of assistance need not be disclosed, a position this Committee
has likewise chosen to adopt, overruling LEOs 1127 and 1592 to the extent they are inconsistent
with this opinion. See ABA Formal Op. 07-446 (May 5, 2007). The Committee concludes that
there is not a provision in the Rules of Professional Conduct that prohibits undisclosed assistance
to a pro se litigant as long as the lawyer does not do so in a manner that violates a rule of conduct
that otherwise would apply to the lawyer’s conduct. This Committee does not believe that the
failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the

4

New York County Law Ass’n Ethics Op. 742 (2010)(disclosure of lawyer’s assistance not required unless
necessary by law, rule of court or court order); New Jersey Ethics Op. 713 (2008)(disclosure not required unless
lawyer behind the scene controlling litigation); ABA Formal Op. 446-07(2007)(litigants ordinarily have the right to
proceed without representation and may do so without revealing that they have received legal assistance in the
absence of a law or rule requiring disclosure). Some state bar opinions have struck a “middle ground” stating that
the lawyer’s assistance should be disclosed if not the lawyer’s identity. Arizona Eth. Op. 06-03 (July 2006) (Limited
Scope Representation; Confidentiality; Coaching; Ghost Writing); Illinois State Bar Ass’n Op. 849 (Dec, 9,1983)
(Limiting Scope of Representation); Maine State Bar Eth. Op. 89 (Aug. 31, 1988); Los Angeles County Bar Ass’n
Eth. Op. 502 (Nov. 4, 1999) (Lawyers’ Duties When Preparing Pleadings or Negotiating Settlement for In Pro Per
Litigant); Los Angeles County Bar Ass’n Eth. Op.483 (Mar. 20, 1995) (Limited Representation of In Pro Per
Litigants). But see Alaska Eth. Op. 93-1 (March 19, 1993) (Preparation of a Client’s Legal Pleadings in a Civil
Action Without Filing an Entry of Appearance) (lawyer’s assistance must be disclosed unless lawyer merely helped
client fill out forms designed for pro se litigants).
5

Colorado Bar Ass’n Eth. Op. 101 (Jan. 17, 1998) (Unbundled Legal Services) (Addendum added Dec. 16, 2006,
noting that Colorado Rules of Professional Conduct amended to state that a lawyer providing limited representation
to pro se party involved in court proceeding must provide lawyer’s name, address, telephone number and
registration number in pleadings); Connecticut Inf. Eth. Op 98-5 (Jan. 30, 1998) (Duties to the Court
Owed by a Lawyer Assisting a Pro Se Litigant); Delaware State Bar Ass’n Committee on Prof’l Eth. Op. 1994-2
(May 6, 1994); Kentucky Bar Ass’n Eth. Op. E-343 (Jan. 1991); New York State Bar Ass’n Committee on Prof’l
Eth. Op. 613 (Sept. 24, 1990).
6

ABA Inf. Op. 1414 (June 6, 1978) (Conduct of Lawyer Who Assists Litigant Appearing Pro Se), in FORMAL
AND INFORMAL ETHICS OPINIONS: FORMAL OPINIONS 316-348, INFORMAL OPINIONS 1285-1495, at
1414 (ABA 1986). See also Florida Bar Ass’n Eth. Op.79-7 (Reconsideration) (Feb. 15, 2000); Iowa Supreme Court
Bd. Of Prof’l Eth. & Conduct Op. 96-31 (June 5, 1997) (Ghost Writing Pleadings); Massachusetts Bar Ass’n Eth.
Op. 98-1 (May 29, 1998); New Hampshire Bar Association (May 12, 1999) (Unbundled Services: Assisting the Pro
Se Litigant); Utah 74 (1981); Association of the Bar of the City of New York, Committee on Prof’l & Jud. Eth.
Formal Op. 1987-2 (Mar. 23, 1987).

LEO 1874
Page 7
part of the lawyer or client, and therefore there would be no violation of Rules 1.2(d), 3.3(b),
4.1(b), or 8.4(c).
Analysis
LEOs 1127 and 1592 did not address the right of the client and the lawyer to agree to
limit the scope of the engagement as explicitly authorized by Rule 1.2(b): “[a] lawyer may limit
the objectives of the representation if the client consents after consultation.” Perhaps that is
because there was no counterpart in the Code of Professional Responsibility for current Rule
1.2(b). 7 With Virginia’s adoption of most of the ABA Model Rules in 2000, a discussion of
Rule 1.2(b) and “unbundling” legal services became a hot topic not only in Virginia but across
the country as well.
We agree with the reasoning in ABA Formal Op. 07-446 that:
The fact that a litigant submitting papers to a tribunal on a pro se basis has
received legal assistance behind the scenes is not material to the merits of the
litigation. Litigants ordinarily have the right to proceed without representation
and may do so without revealing that they have received legal assistance in the
absence of a law or rule requiring disclosure.
Some case decisions and ethics opinions have required disclosure of the lawyer’s
assistance on the basis that pro se litigants are treated more leniently and held to less stringent
standards than litigants that are represented by counsel. This Committee does not share this
concern and believes that a pro se litigant that receives undisclosed assistance by a lawyer will
not receive any unwarranted special treatment. In many instances, if the lawyer has been
competent and effective with his undisclosed assistance it will be obvious to the court and other
parties that a lawyer has been involved. If the undisclosed lawyer has not been competent or
effective, the pro se litigant will have no advantage. We see no reason to conclude, as some
decisions and opinions have, that undisclosed assistance will give the pro se litigant an “unfair
advantage.” As noted by one commentator:
Practically speaking … ghostwriting is obvious from the face of the legal papers,
a fact that prompts objections to ghostwriting in the first place.… Thus, where the
court sees the higher quality of the pleadings, there is no reason to apply any
liberality in construction because liberality is, by definition, only necessary where
pleadings are obscure. If the pleading can be clearly understood, but an essential
fact or element is missing, neither an attorney-drafted nor a pro se-drafted
complaint should survive the motion. A court that refuses to dismiss or enter
7

DR 7-101(B)(1) stated that a lawyer may, “with the express or implied authority of his client, exercise his
professional judgment to limit or vary his client objectives and waive or fail to assert and waive or fail to assert a
right or position of his client.” This provision seems quite different from current Rule 1.2(c) as the former rule only
authorizes the lawyer to waive or fail to assert positions of the client in mid-stream after the representation has
begun. In contrast, and more appropriate to the subject of “ghostwriting” a pleading for a pro se litigant, Rule 1.2(c)
and Comment [6] focus on an agreement reached between lawyer and client at the outset of the representation. Most
of the newer ethics opinions on “ghostwriting” rely heavily on Rule 1.2 and the right to limit the scope of the
representation.

LEO 1874
Page 8
summary judgment against a non-ghostwritten pro se pleading that lacks essential
facts or elements commits reversible error in the same manner as if it refuses to
deny such dispositive motions against an attorney-drafted complaint.
Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URB. L.J. 1145, 1157-58 (2002).
Critics are concerned that a litigant appearing pro se will receive an unfair benefit from a tribunal
as a result of undisclosed legal assistance. That concern, in the Committee’s view, is outweighed
by the court having a properly pleaded motion, complaint, answer, or other document to consider
and the broader access to justice that limited assistance may promote. The Committee believes,
therefore, that the nature or extent of such assistance is immaterial and need not be disclosed.
Nor does the Committee believe that providing undisclosed assistance to a pro se litigant
violates Rule 3.3. Similarly, this Committee believes that non-disclosure of the lawyer’s
assistance is not an act of dishonesty, fraud, deceit or misrepresentation that is prohibited by
Rule 8.4(c) nor is the lawyer assisting the pro se litigant in conduct that is illegal or fraudulent in
contravention of Rule 1.2(c). Finally, we believe that assistance to a pro se litigant is not a
material fact that must be disclosed to another party under Rule 4.1. The Committee believes
that a lawyer who has been asked by a pro se litigant for limited assistance on some discrete
tasks and who undertakes them in a manner that comports with Rule 1.2(b) and all other
applicable rules of conduct should not be subject to discipline for having done so.
This opinion assumes that the lawyer is practicing in a jurisdiction where no law or
tribunal rule requires disclosure of such participation, prohibits litigants from employing lawyers
(e.g., small claims courts), or otherwise regulates such undisclosed advice or drafting. If there is
such a regulation, the boundaries of the lawyer’s obligation are beyond the scope of this opinion.
Your inquiries in Questions 1-4 have been answered on the basis that the Rules of
Professional Conduct do not obligate the lawyer to ensure that the court is informed that a pro se
litigant has received assistance from the lawyer. The Committee adds that it is not practical to
require that lawyers ensure that a court is informed of his assistance to a pro se litigant after the
lawyer-client relationship has ended and the lawyer has no control over what pleadings are
actually filed with the court.
In regard to your Question Number 5, whether the court in which the pleading is filed
will regard Law Firm as having entered an appearance on behalf of Member is a question of law
beyond the Committee’s purview. 8 However, as part of the lawyer’s duty of competence under
Rule 1.1, the lawyer should exercise diligence and research the particular court’s view of
“ghostwriting” pleadings for a pro se litigant. As one court stated:

8

See Walker v. American Ass’n of Prof. Eye Care, 268 Va. 117, 597 S.E.2d 47 (2004)(lawyer who assisted pro se
litigant with motion for judgment signed only by plaintiff as pro se party and filed pleading with clerk’s office with
filing fee did not enter an appearance on behalf of plaintiff).

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Nevertheless, the Court considers it improper for lawyers to draft or assist in
drafting complaints or other documents submitted to the Court on behalf of
litigants designated as pro se. 9
Thus, regardless of whether the preparation of a pleading for a pro se litigant constitutes
an “appearance,” the lawyer must make a reasonable effort to determine if the particular court
will permit the preparation of a lawsuit on behalf of a pro se litigant that is not signed by the
lawyer preparing the document, as some courts do not allow such a practice on procedural,
ethical and substantive grounds. 10 As some courts have complained that “ghostwriting” evades
the lawyer’s obligations under Rule 11 of the Federal Rules of Civil Procedure, Law Firm must
also be mindful of its obligation to not assist a Member in the preparation of a pleading that is
frivolous. See Rule 3.1. 11
This Committee observes that, in contrast to the federal court precedents, a majority of
state courts and state bar ethics opinions point to a positive trend toward acceptance of
undisclosed assistance to pro se litigants. See Ira P. Robbins, Ghostwriting: Filling in the Gaps
of Pro Se Prisoners’ Access to the Courts, 23 GEO. J. LEGAL ETHICS 271, 286-88
(2010)(reporting that of 24 states that have addressed this issue, 13 permit ghostwriting, and of
those 13 states, 10 permit undisclosed ghostwriting while 3 require a statement on the pleading to
9

Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1077 (E.D. Va. 1997). See also
Sejas v. MortgageIT, Inc., 1:11cv469 (JCC) (E.D. Va. 2011):
[T]his Court admonishes Plaintiff that ‘the practice of ghost-writing legal documents to be filed
with the Court by litigants designated as proceeding pro se is inconsistent with the procedural,
ethical and substantive rules of this Court.’ Laremont-Lopez v. Southeast Tidewater Opportunity
Ctr., 968 F. Supp. 1075, 1080-81 (E.D. Va. 1997). The Court further warns any attorney providing
ghostwriting assistance that he or she is behaving unethically. Davis v. Back, No. 3:09cv557, 2010
WL 1779982, at *13 (E.D. Va. April 29, 2010) (Ellis, J.).
10

Barnett v. LeMaster, 12 F. App‘x 774, 778–79 (10th Cir. 2001) (stating that where the party entered a pro se
appearance as well as filed and signed his appeal pro se, the attorney who drafted the brief knowingly committed a
gross misrepresentation to this court); Duran v. Carris, 238 F.3d 1268, 1272 (10th Cir. 2001) (determining that
attorney ghostwriting of pro se litigant‘s appellate brief constitute[d] a misrepresentation to this court by litigant and
attorney); Laremont-Lopez v. SoutheasternTidewater Opportunity Ctr., 968 F. Supp. 1075, 1078 (E.D. Va. 1997)
(finding that attorney ghostwriting of pro se litigants‘ complaints constitute[d] a misrepresentation to the Court);
United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 1997) (“Clearly, the party‘s representation to the
Court that he is pro se is not true when the pleadings are being prepared by the lawyer. A lawyer should not silently
acquiesce to such representation.”); In re Mungo, 305 B.R. 762, 769 (Bankr. D.S.C. 2003) (“[T]his Court prohibits
attorneys from ghost-writing pleadings and motions for litigants that appear pro se because such an act is a
misrepresentation that violates an attorney‘s duty and professional responsibility to provide the utmost candor
toward the Court.”); see also Johnson v. Bd. of County Comm‘rs, 868 F. Supp. 1226, 1232 (D. Colo. 1994) (“Having
a litigant appear to be pro se when in truth an attorney is authoring pleadings and necessarily guiding the
course of the litigation with an unseen hand . . . is far below the level of candor which must be met
by members of the bar.”), aff’d, 85 F.3d 489 (10th Cir. 1995); In re Merriam, 250 B.R. 724, 733 (Bankr. D. Colo.
2000) (finding that attorney ghostwriting of pro se litigant‘s court documents violates the attorney‘s duty of honesty
and candor to the court).
11

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis
for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of
existing law.”

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indicate it was prepared with the assistance of counsel; 10 states expressly forbid ghostwriting).
Even some federal courts have “softened” their position toward ghostwriting. The Second
Circuit, in an attorney disciplinary case styled In re Fengling Liu, Doc. No. 09-90006-am, 2011
U.S. App. LEXIS 23326 (Nov. 22, 2011), while publicly reprimanding an immigration lawyer
for other misconduct, found that her ghostwritten pleadings were not improper:
We also conclude that there is no evidence suggesting that Liu knew, or should
have known, that she was withholding material information from Court or that she
otherwise acted in bad faith. The petitions for review not at issue were fairly
simple and unlikely to cause any confusion or prejudice. Additionally, there is no
indication that Liu sought, or was aware that she might obtain, any unfair
advantage through her ghostwriting. Finally, Liu’s motive in preparing the
petitions—to preserve the petitioner’s right of review by satisfying the thirty-day
jurisdictional deadline—demonstrated concern for clients rather than a desire to
mislead this Court or opposing parties. Under these circumstances, we conclude
that Liu’s ghostwriting did not constitute misconduct and therefore does not
warrant the imposition of discipline.
In response to Question Number 6, this is a question of law beyond the Committee’s
purview. Assuming the court deems Law Firm to have appeared as counsel for Member, Law
Firm would have a duty to perform the tasks required of counsel of record to protect Member’s
interests in the pending case unless and until Law Firm is granted leave to withdraw, even if
Member refuses to pay for Law Firm’s services.
As to your Question Number 7, to perform only the limited and discrete task of preparing
a pleading for a person to file pro se, the Committee does not believe the Rules of Professional
Conduct require that notice of that limited representation be given to an opposing party or their
counsel.
As to your Question Number 8, the Committee believes that the manner in which Law
Firm is compensated does not affect how the questions in this opinion are addressed.
Conclusion
To sum up, the Committee does not believe that nondisclosure of the fact of legal
assistance is dishonest so as to violate Rules 3.3 or 8.4(c). Whether it is dishonest for the lawyer
to provide undisclosed assistance to a pro se litigant turns on whether the court would be misled
by failure to disclose such assistance. The lawyer is making no representation to the tribunal
regarding the nature or scope of the representation, and indeed, may be obliged under Rule 1.6
not to reveal the fact of the representation. Absent an affirmative statement by the client that can
be attributed to the lawyer that the documents were prepared without legal assistance, the lawyer
has not made any false statements of fact to the court prohibited by Rule 3.3, nor has been
dishonest within the meaning of Rule 8.4(c). The non-disclosure of the lawyer’s behind-thescenes assistance is not material to the court’s determination of the merits of the pro se litigant’s
position or case and therefore the court is not misled by the non-disclosure.
While this Committee opines that undisclosed assistance to a pro se litigant is permissible
under the Rules of Professional Conduct, if a lawyer agrees to prepare a lawsuit for a pro se

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litigant, he or she must do so competently and may not prepare one that is frivolous. See Rules
1.1 and 3.1. Preparing a lawsuit for a person to file pro se requires that the lawyer make a
sufficient inquiry of the facts and research of applicable law to ensure that the pleading contains
claims that are not frivolous. Further, depending on the complexity of the case and the
sophistication of the limited scope client, the preparation of a lawsuit for the limited scope client
may not be an appropriate means by which to accomplish the client’s objectives. See Rule 1.2.
When limited scope representation is considered for a pro se litigant, the lawyer must meet the
“consultation” requirement of Rule 1.2 by explaining to the client the advantages and
disadvantages of limited scope versus full representation.
This Committee concludes that the Rules of Professional Conduct do not prohibit
undisclosed assistance to a pro se litigant. However, lawyers who undertake to prepare or assist
in the preparation of a pleading for a pro se litigant may advise the pro se litigant to insert a
statement to the effect that “this document was prepared with the assistance of a licensed and
active member of the Virginia State Bar.” Because the fact of the lawyer’s assistance may be
confidential under Rule 1.6(a), the lawyer should not include such a statement if the client
objects to revealing that fact.
This opinion is advisory only and is not binding on any court or tribunal.
Committee Opinion
July 28, 2014