The Lawyer's Lawyer
The Unbundled Ghost
Q. Unable to pay a significant retainer in a divorce case, a client asked if I could help him "behind the scenes" and ghostwrite certain pleadings without entering an appearance. Is that allowed?
A. Hmm. If I understand your question correctly, this pro se litigant wants to hire you on a piecemeal basis to draft pleadings for his signature, while concealing your identity and involvement from the Court?
In most states, you may.
Once upon a time, ghostwriting was universally condemned as a form of misrepresentation. By preparing pleadings for the signature and filing of a litigant claiming to represent himself, these jurisdictions frowned upon the lack of candor toward tribunals that often cut pro se litigants a break and liberally construed their paperwork.
But today, we ain't afraid of no ghosts. Absent other procedural rules, few jurisdictions even require the disclosure of a lawyer's involvement.
Since some form of legal assistance is better than none at all, most jurisdictions have amended the Rules of Professional Conduct to let lawyers limit the scope of representation and provide many services à la carte.
Under Rule 1.2(c), lawyers may limit the scope of their services if:
The Court may never know your name. But you are still an "officer of the court" and must obey all legal and ethical restrictions in your jurisdiction. Thus, while you won't be signing the papers you prepare, you may not prepare frivolous pleadings or motions for filing in court. Nor can you misrepresent or conceal material information in any of these documents. While your role as counsel may be limited, your duty to perform this role competently, diligently and ethically remains.Even though you won't appear in court or sign pleadings, you may not ghostwrite pleadings or coach clients on cases pending in courts where you are not licensed. The only thing more frightening than unlicensed ghosts are criminal charges for the unauthorized practice of law.
Assuming that you are duly licensed to provide such "unbundled services," your retainer agreement must establish clear parameters on the work you'll do and on the types of services which lie beyond the limited scope of your representation. Because you won't be arguing motions or trying the case, you must expressly inform the client of the pitfalls of attempting to navigate rules of procedure and evidence when facing the Court alone. While your limited involvement may help him to some extent, you must advise the client of the increased risks that come with limited representation.
Such engagements may improve access to justice for those who can't afford a full-service advocate. But there still may be good reasons for you to avoid some of these situations. Even if your retainer agreement carefully limits the scope of your representation, these clients will look to you as their attorney. It may be easy to set limits in writing. It is far more difficult to enforce these parameters when distressed clients call you in dire need of assistance under the specter of impending deadlines.
Whether or not you exceed the limited scope of your retainer, you are not immune from grievances or from malpractice claims. The Court may not know your name, but a dissatisfied client will know who to blame if things go wrong. The fact that your appearance has not been entered in the case will not insulate you from these complaints.
Considering the myriad of issues that may arise in court cases, it's harder to provide limited services in litigation than it is in connection with discrete transactions. In either instance, setting written limits that you can live by will be essential in preventing unbundled services from unraveling.