{"id":601,"date":"2007-03-16T14:24:39","date_gmt":"2007-03-16T18:24:39","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/03\/16\/nj-fed-court-bars-undisclosed-ghostwrit"},"modified":"2007-03-16T14:24:39","modified_gmt":"2007-03-16T18:24:39","slug":"nj-fed-court-bars-undisclosed-ghostwriting","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2007\/03\/16\/nj-fed-court-bars-undisclosed-ghostwriting\/","title":{"rendered":"NJ Fed. Court bars undisclosed ghostwriting"},"content":{"rendered":"

\"ghostProf\"\u00a0 According to a summary in\u00a0Freivogel on Conflicts<\/em><\/a> (March 13, 2007), the Federal District Court for New Jersey has issued a decision stating that\u00a0“undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey.”\u00a0 The case is Delso v. Trustees for Plan of Merck & Co., Inc<\/em>. (D.N.J. March 5, 2007)\u00a02007 U.S. Dist. LEXIS 16643.\u00a0(via Carolyn Elefant at LegalBlogWatch<\/a><\/em>\u00a0and Alan Childress at\u00a0 Legal Profession Blog<\/a><\/em>)\u00a0\u00a0A ghostwritten pleading has been drafted in whole or part by a lawyer for a party who is appearing pro se<\/em> in a court proceeding; the document is filed by the party without attributing it to the attorney.\u00a0\u00a0 Writing the pleading is an “unbundled” service provided by the lawyer to the unrepresented litigant.<\/p>\n

According to Freivogel:<\/p>\n

\"ghostProfN\"\u00a0“The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se<\/em> litigants more slack. That puts the other side at a disadvantage when the pro se litigants\u2019 pleadings are ghostwritten by lawyers.”<\/p><\/blockquote>\n

If you have access to the court’s opinion in Delso<\/em>, please share the relevant parts with us.<\/p>\n

As we reported<\/a> on January 2, 2007,\u00a0Rule 3.37<\/a> of the California Rules of Court permits \u201cUndisclosed representation,\u201d including ghostwriting and coaching.\u00a0 Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose<\/em> within the text of the documents that he or she was involved in preparing the documents.” (emphasis added)<\/p>\n

You can find further discussion of ghostwriting, in Arizona Bar Ethics Opinion 05-06<\/a> (July 2005).\u00a0 The Arizona Bar concluded that “The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona<\/em> [pro se<\/em>].”\u00a0 The ethics opinion noted that other jurisdictions have disagreed, and collects citations to many rulings in other states (via Mike Frisch at Law Profession Blog<\/em><\/a>)<\/p>\n

\"ProfPointer\"<\/em>My perspective<\/em> (as stated today in a Comment<\/a> at LegalBlogWatch<\/em>):\u00a0 In general, if a judge gives a pro se<\/em> litigant “more slack,” it should only be where and when he or she needs it in order to have the case fairly presented and heard — e.g<\/em>., understanding procedural rules, presenting written arguments, asking questions at trial.\u00a0\u00a0The\u00a0pro se<\/em> party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g.<\/em>,\u00a0cogency of arguments, form of citations, depth of research, etc.)\u00a0that\u00a0has in fact been written by a lawyer.\u00a0 Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading.\u00a0 Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. [our prior post<\/a> discusses and links to sources on the proper role of judges dealing with unrepresented litigants]<\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0 According to a summary in\u00a0Freivogel on Conflicts (March 13, 2007), the Federal District Court for New Jersey has issued a decision stating that\u00a0“undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey.”\u00a0 The case is Delso v. Trustees for Plan […]<\/p>\n","protected":false},"author":437,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[991,900],"tags":[],"class_list":["post-601","post","type-post","status-publish","format-standard","hentry","category-news-items","category-viewpoint"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/601","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/users\/437"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/comments?post=601"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/601\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/media?parent=601"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/categories?post=601"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/tags?post=601"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}