Can a Washington lawyer ghostwrite pleadings or motions for a self-represented party in state court without disclosing the lawyer's involvement?

Plain-English summary

The committee addressed "ghostwriting," the undisclosed drafting of pleadings, motions, or other documents for pro se litigants, and concluded Washington lawyers may do so for pro se parties in state court civil litigation. It traced the answer to the 2002 Washington Supreme Court amendments to the RPC, Civil Rules (CR), and Civil Rules for Courts of Limited Jurisdiction (CRLJ) that permit limited-scope representation, amendments rooted in concern over public access to legal services and to justice.

The committee held that RPC 1.2(c) permits a lawyer to limit the scope of representation if the limitation is reasonable and the client gives informed consent. It quoted CR 11(b) and CRLJ 11(b), under which an attorney who helps draft a document filed by an otherwise self-represented person certifies, after reasonable inquiry, that the filing is well grounded in fact, warranted by law or a good-faith argument, not for an improper purpose, and that factual denials are warranted; the attorney may rely on the self-represented person's representation of facts unless the attorney has reason to believe they are false or materially insufficient, in which case the attorney must make an independent reasonable inquiry. A lawyer who ghostwrites must comply with the applicable Rule 11 and all RPCs, including RPC 3.3 (candor toward the tribunal).

The committee found its conclusion consistent with ABA Formal Opinion 07-446 (2007), which similarly concluded a lawyer may help pro se litigants prepare written submissions without disclosing the nature or extent of the assistance, reasoning that undisclosed legal assistance is not material to the merits, gives no unfair benefit, and is not dishonest. The committee cautioned that the opinion does not apply to criminal practice and may not apply to drafting assistance in federal civil practice, citing Tift v. Ball, where a federal court treated undisclosed attorney assistance to a pro se litigant as a Rule 11 violation.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that ghostwriting for a pro se party in state court civil litigation is permitted as a form of limited-scope representation under RPC 1.2(c), conditioned on a reasonable limitation, the client's informed consent, and compliance with CR 11(b) or CRLJ 11(b) and all other RPCs, including the candor duty of RPC 3.3. The opinion identifies the forum and practice area as limiting factors: it does not apply to criminal practice and may not apply in federal civil practice, where a cited federal decision treated undisclosed assistance as a Rule 11 violation.

Common questions

Q: Can a Washington lawyer draft court documents for a self-represented person without disclosing it?

A: Yes, in state court civil litigation. The committee held that Washington lawyers may ghostwrite for pro se parties under RPC 1.2(c), subject to Civil Rule 11(b) and the other RPCs.

Q: What does the lawyer certify by helping draft the filing?

A: Under CR 11(b)/CRLJ 11(b), the committee said the attorney certifies, after reasonable inquiry, that the filing is well grounded in fact, warranted by law or a good-faith argument, not for an improper purpose, and that factual denials are warranted.

Q: Can the lawyer rely on the client's account of the facts?

A: The committee said the attorney may rely on the self-represented person's representation of facts unless the attorney has reason to believe they are false or materially insufficient, in which case the attorney must make an independent reasonable inquiry.

Q: Does this apply in criminal or federal cases?

A: No to criminal practice, and the committee cautioned it may not apply in federal civil practice, citing Tift v. Ball, where a federal court treated undisclosed attorney assistance as a Rule 11 violation.

Background and rules framework

The opinion interprets Washington RPC 1.2(c) (Model Rule 1.2(c), limited-scope representation with informed consent) and RPC 3.3 (Model Rule 3.3, candor toward the tribunal), together with Washington Civil Rule 11(b) and Civil Rule for Courts of Limited Jurisdiction 11(b), which govern an attorney's certification when assisting a self-represented person's filing. It situates the answer in the 2002 Washington amendments authorizing limited-scope representation and aligns with ABA Formal Opinion 07-446.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2(c) / Washington RPC 1.2(c) (limited-scope representation)
• Model Rule 3.3 / Washington RPC 3.3 (candor toward the tribunal)

Court rules:

• Washington CR 11(b); CRLJ 11(b) (attorney certification when assisting a self-represented person)

Cases:

• Tift v. Ball, No. C07-0276-RSM, 2008 WL 701979 (W.D. Wash. Mar. 12, 2008), undisclosed attorney assistance to a pro se litigant treated as a Rule 11 violation in federal court

Other opinions cited:

• ABA Formal Opinion 07-446 (2007): undisclosed assistance to pro se litigants

See also

• ABA Formal Op. 07-446: undisclosed assistance to pro se litigants
• WA Ethics Op. 201901: lawyer-mediator preparing pleadings for unrepresented parties

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1695

Original opinion text

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

Advisory Opinion: 202002
Year Issued: 2020
RPC(s): RPC 1.2(c), RPC 3.3, CR11(b), CRLJ 11(b)
Subject: Ghostwriting for pro se Parties in State Court Litigation

Summary: Washington lawyers may ghostwrite for pro se parties in state court civil litigation.

Analysis:

“Ghostwriting” is the undisclosed drafting of pleadings, motions, or other documents for pro se litigants.

In 2002, the Washington Supreme Court made changes to the Rules of Professional Conduct (RPC), Civil Rules (CR), and Civil Rules for Courts of Limited Jurisdiction (CRLJ) to permit limited-scope representation in civil law practice. “Those rules originated in a deep concern by the bench and bar and public over widespread lack of public access to legal services and thereby the public’s lack of access to justice.” Barrie Althoff, Ethical Issues Posed by Limited-Scope Representation: The Washington Experience, 2004 Prof. Law. 67, 77 (2004). The amended rules allow Washington lawyers to ghostwrite for pro se civil litigants.

RPC 1.2(c) permits a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

CR 11(b) and CRLJ 11(b) both provide as follows:

In helping to draft a pleading, motion, or document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the pleading, motion, or legal memorandum, and that to the best of the attorney’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is well grounded in fact, (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. The attorney in providing such drafting assistance may rely on the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

A lawyer who ghostwrites for a pro se civil litigant must comply with the applicable Rule 11 and all RPCs, including but not limited to RPC 3.3 (Candor Toward the Tribunal).

This Advisory Opinion is consistent with ABA Formal Opinion 07-446 (2007), and similarly concludes that “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.” The ABA Standing Committee on Ethics and Professional Responsibility rejected concerns about ghostwriting expressed by certain state and local ethics committees. The ABA Standing Committee concluded that the fact of undisclosed legal assistance “is not material to the merits of the litigation”; “there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance”; and “we do not believe that nondisclosure of the fact of legal assistance is dishonest.”

This Advisory Opinion does not apply to criminal law practice. In addition, it may not apply to a lawyer providing drafting assistance to a pro se client in federal civil practice. See, e.g., Tift v. Ball, No. C07-0276-RSM, 2008 WL 701979, at *1 (W.D. Wash. Mar. 12, 2008) (“It is therefore a violation for attorneys to assist pro se litigants by preparing their briefs, and thereby escape the obligations imposed on them under Rule 11.”).