Opinion 202002

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.”).