Periodically, a litigant who is representing himself or herself in court in New York State contacts this author, states that he or she can’t afford to retain an attorney to represent him or her throughout the lawsuit, and asks whether this author, without entering an appearance as counsel of record, will draft or edit certain pleadings for the litigant to sign and file with the court pro se. Because such ghostwriting of a pro se litigant’s pleadings is irresponsible and unprofessional, may well violate New York’s attorney ethics rules, and raises serious malpractice concerns, this author’s answer invariably is a resounding “no.”
This post seeks to outline the ethical dilemmas and malpractice risks which (i), for the most part, prompt attorneys to decline to provide unbundled legal services (that is, limited representation) in lawsuits in New York State and (ii), in particular, cause attorneys in New York to decline to ghostwrite or ghost-edit pleadings for a litigant to sign and submit to the court pro se.
In 1990, the New York State Bar Association’s Committee on Professional Ethics held: “We believe that the preparation of a pleading, even a simple one, for a pro se litigant constitutes ‘active and substantial’ aid requiring disclosure of the lawyer’s participation,” even where the pro se litigant is indigent. NYSBA Comm. on Prof’l Ethics, Op. 613 (1990). Similarly, in 2002, a New York State Bar Association Commission “recommend[ed] that, as a general matter, limited appearances not be permitted in litigation.” Final Report & Recommendations on “Unbundled” Legal Services (NYSBA Comm. on Providing Access to Legal Servs. for Middle Income Consumers), Dec. 2002, at 5.
A recent commentator thoughtfully notes that “Perhaps the largest concern surrounding ghostwriting is the potential for breaches of rules of professional and ethical professional and ethical conduct; including, the duty of candor toward the court, the duty of fairness to the opposing party, the duty of competent representation, and the duty to avoid bringing nonmeritorious claims.” Rochelle Klempner, Unbundled Legal Servs. in N.Y. State Litigated Matters: A Proposal to Test the Efficacy Through Law School Clinics, 30 N.Y.U. Rev. L. & Soc. Change 653 (2006). For example, an attorney whose layperson client authorizes only limited editing by the attorney of court documents which the client has drafted may be unable to fulfill his (the attorney’s) duties to “provide competent representation” to the client and to “act with reasonable diligence” in representing the client. See N.Y. Rules of Prof’l Conduct 1.1, 1.3.
The same commentator trenchantly suggests that “ghostwriting . . . is unfair in light of the special leniency afforded pro se pleadings in court.” Klempner, supra.
N.Y. Rule of Prof’l Conduct 1.2(c) states: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.” This attorney ethics rule appears to preclude a New York attorney from providing limited representation (such as by ghostwriting a pro se litigant’s pleadings) unless the attorney signs his name to the pleadings.
As stated, a New York attorney may limit the scope of representation “if the limitation is reasonable under the circumstances.” N.Y. Rule of Prof’l Conduct 1.2(c). Nevertheless, an attorney, by purporting to absolve himself, in a retainer agreement, of liability for not taking actions outside the limited representation, acts at his peril. If a court later determines that the limited scope of the lawyer’s representation of the client was unreasonable, the lawyer may well be held liable for legal malpractice.
It should be noted that some states are more accepting of unbundled legal services in litigated matters than is New York. For example, in Lerner v. Laufer, 819 A.2d 471, 359 N.J. Super. 201 (N.J. App. Div. 2003), New Jersey’s Appellate Division, affirming the Superior Court’s order granting summary judgment dismissing a former wife’s complaint against her matrimonial attorney for legal malpractice, held that an attorney may limit the scope of his representation of a matrimonial client in reviewing a mediated property settlement agreement.
Yet whatever the opinion of other states’ courts may be, the ethical problems and malpractice risks in New York are such that most New York attorneys wisely decline to provide unbundled legal services in lawsuits in this State. In particular, most New York lawyers who are solicited for such work decline to ghostwrite or ghost-edit pleadings for a litigant to sign and file with the court pro se. As a result, if you represent yourself in court in New York State, do not expect to find an attorney who, without entering an appearance as counsel of record, is willing to draft or edit particular pleadings for you to sign and submit to the court in your own name.