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Delso ghostwriter update


 ghostProfN  A week ago, we reported that a New Jersey federal court had barred the undisclosed use of “ghostwritten” pleadings [that is, a pleading filed by a pro se litigant, but written in whole or part by a lawyer].  Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643.  On March 21, 2007, the New Jersey Law Journal/ had an article focusing on the Delso case and U.S. Magistrate Judge Tonianne Bongiovanni, who wrote the decision.  “‘Ghostwriting’ Lawyer Effaced From ERISA Case on Ethics Grounds,” by Charles Toutant.  At Legal Profession Blog, Alan Childress continued his coverage of Delso, getting to the nub of the NJLJ article:

“Notice that the N.J. decision seems to rest on the lack of authorization in N.J. rules for such discrete-task or ‘limited’ representations, and thus may extend beyond undisclosed ghostwriting.  The judge wrote, ‘This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC [in New Jersey], ghostwriting is antithetical to the public interest’ .” 

Alan also pointed to Prof. Andrew Perlman’s discussion of Delso at Legal Ethics Forum. [In our prior post, we disagreed with the judge’s worry about unfairly helping the pro se litigant who has undisclosed assistance from a lawyer in drafting a pleading.]

ghostProf On an unrelated but haunting topic, a couple days ago, I noticed an excellent example of the problems with pro se nomenclature that I fretted over last November.   After coining a rule of thumb in the body of the post:  “If it’s Latin, it’s probably not Plain English,” I added a Comment explaining:

“Foreign terms are fine when they are already well-understand and long-standing — or when used among specialists. But, when the general public is involved, real English seems like a worthy goal. That’s especially true when a term like “pro se” can so easily be confused with the far-better known (but often also misunderstood) “per se.” 

This concern was substantiated in the article “Police see rise in drugged driving,” Times-Argus [Montpelier, VT], by Peter Hirschfeld, March 21, 2007.  The piece concerned a recently proposed Bill, S.168, that would strengthen laws against driving under the influence of any drug.  Stuart Schurr, traffic safety resource prosecutor for the Department of State’s Attorneys and Sheriffs, explained the Bill to the Times-Argus: 

The new law, he says, “would go a long way toward helping us prosecute cases we’re not able to do now.” The law would also set a “pro se” standard for intoxication, which would establish a toxicity threshold a driver couldn’t legally exceed.   

It seems to me that a “pro se standard for intoxication” must have something to do with the driver setting his or her own intoxication standard.  Surely, prosecutor Schurr (who I am assuming is a lawyer) meant “per se standard of intoxication.”  Of course, it is possible that he was misquoted.  But, that would mean that the Times-Argus reporter who covers the legal beat can’t distinguish between pro and per se.  Either way, my point is made.  Latin is seldom Plain English.  Now, there’s a self-made, per se linguistics rule we can all agree with. 

1 Comment

  1. Stuart Schurr

    January 4, 2010 @ 6:13 pm


    You are correct in assuming that I am a lawyer. Having identified me as a prosecutor, I assume you knew that. Having taken five years of honors Latin prior to attending, and graduating from, Duke University, I can assure you that I know the difference between per se and pro se.

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