The Scenario: A sole proprietorship carpenter who has a successful luxury home renovation business calls you and asks for help perfecting a mechanic's lien in her state. You say
absolutely and send off your standard form of engagement letter with a list of documents/information you need to prepare the lien paperwork.
The carpenter calls back saying that he just needs the lien paperwork filled out and he will handle all the filings including filing the action in Court.
He says "I don't want you to appear for me, I don't need an attorney to talk for me,
I don't need a mask. I do want the mechanic's lien paperwork done per the statute, which frankly I don't understand."
Can you do what the client is asking under the applicable civil rules of procedure and rules of professional responsibility?
The issue of attorney ghostwriting for
pro se litigants was recently decided by the Rhode Island Supreme Court in
FIA Card Services, N.A. v. Pichette, Nos. 2012-272-Appeal, 2013-156-Appeal, 2013-157-Appeal (R.I. June 8, 2015). The Court consolidated three cases where three different attorneys had been sanctioned by the trial court for ghostwriting
pro se litigants' pleadings. There were two issues considered by the Supreme Court:
- "[W]hether an attorney who engages in ghostwriting -- providing drafting assistance to a pro se litigant without disclosing his or her identity to the court either by signing the pleading or entering his or her appearance -- violates Rule 11." FIA Card Services, at *12.
- "[W]hether 'ghostwriting' is permitted under Article V, Rule 1.2(c) of the Supreme Court Rules of Professional Conduct [which expressly permits limited scope representation]."
Rule 11 Is Not Violated By Ghostwriting
Following a line of federal court cases that condemn ghostwriting as a violation of Rule 11, the Trial Court issued sanctions against two of the attorney appellants because such conduct violated the purpose of the rule. Construing the language of Rhode Island Superior Court Rule of Procedure, Rule 11 (based off of the 1983 version of Fed. R. Civ. P. R. 11), one of the hearing justices wrote:
While this language might be read to suggest that a non-signing attorney cannot be sanctioned under Rule 11, the [c]ourt finds that this reading runs contrary to the clear intent of Rule 11, which is to enforce an attorney's ethical obligations of candor and honesty in interactions with the tribunal.
FIA Card Services, at *14. While the Supreme Court agreed with the policy findings of the trial justice, it disagreed with the "expansive interpretation of Rule 11 in the ghostwriting context."
FIA Card Services, at *14. The Court explained:
[T]he linchpin of Rule 11 is its signature requirement. This signature provides the vehicle through which courts may reach attorneys or litigants to impose sanctions, if necessary, for misconduct in the submission of signed papers during the litigation process.
FIA Card Services, at *14. Thus, because each of the appellant attorneys did
not sign the pleadings presented by the
pro se litigants, the Supreme Court vacated the Rule 11 sanctions issued against the three attorneys.
Undisclosed Ghostwriting Is Prohibited In RI (but check your state)
Limited attorney client engagements are permitted in Rhode Island by Rule of Professional Conduct Rule 1.2(c). Mirrored after the ABA's Model Rules of Professional Conduct, Rule 1.2(c) "allows that '[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.'"
FIA Card Services, at *19.
The Court engaged in a thoughtful analysis of whether an attorney providing ghostwriting services is dishonest (MRCP R. 8.2) and/or violates the duty of candor to the tribunal/opposing party. It cited repeatedly the
ABA's Formal Opinion 07-446, Undisclosed Legal Assistance to Pro Se Litigants (May 5, 2007), which surveyed different jurisdictions and concluded "that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer's conduct." ABA Formal Opinion 07-446, p. 4.
The Court noted different paths taken by jurisdictions:
- California: Permits complete nondisclosure of attorney assistance. FIA Card Services, at *20, citing Cal. Rules of Court Title 3, chapter 3, Rules 3.35, 3.37.
- Massachusetts, New Hampshire, Connecticut: Requires a written disclosure in a pleading that legal assistance was provided in the preparation of the document, but permits anonymity. FIA Card Services, at *20, citing Mass. Sup. Jud. Ct., Order In Re: Limited Assistance Representation (2009). [Note that these are the bordering states of Rhode Island.]
- Colorado: Requires the attorney's name assisting with the drafting to be disclosed on the document. FIA Card Services, at *20, citing Colo. R. Prof. Cond. 1.2; Colo. R. Civ. P. 11(b).
Recognizing the need for "clear guidelines to assist practitioners navigating these murky waters[,]" the Court "declar[ed] the policy in [Rhode Island] courts to be as follows:
- An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney's representation is reasonable and the litigant gives informed consent. See Rule 1.2(c).
- Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship.
- An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation.
- The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance."
FIA Card Services, at *21-23 (bold font and bullet points not in the original). Departing from its neighboring states, the Rhode Island high court believed "full disclosure of the attorney's involvement, albeit limited, is the better practice" because a drafting attorney ". . . should be held to imparts the same standard of good faith as an attorney of record."
FIA Card Services, at *23.
Conclusion
The answer to the initial questions raised in the scenario above, of course, is "it depends." What if you are in a state that has not decided the issue? While the Rhode Island Supreme Court heavily cited the ABA Formal Opinion, it chose not to follow it.
As demand increases to grow for limited-scope or "un-bundled" representation, these issues should become more uniform across state-lines. Until then, it is particularly important to consult the rules of each state in which you practice before agreeing to be the man or woman behind the mask.
-----
The author,
Tom Dunn, is one of The Dispute Resolver's Co-Editors. Tom practices construction law and complex business litigation in Rhode Island and Massachusetts. He is a partner at Pierce Atwood, LLP. He also serves on the Steering Committee for Division 1 of the Forum on Construction Law, the Associate Editor of
Under Construction, the Forum on Construction Law's newsletter, and is involved in the Forum's Publications and Membership Committees. Tom can be contacted at 401-490-3418 or
rtdunn@PierceAtwood.com.
During their hour discussion, Ben and John will consider many of
the burning “what if” questions that can arise in the context of appellate
arbitration and appealing an arbitrator’s decision to a court. Some of
the highlights include “what if the institutional provider appoints an
arbitrator that lacks necessary industry experience in the subject of the
claims?” and “what if a court stays your litigation pending arbitration but
applies the blue pencil approach to rewrite your arbitration agreement?”
John and Ben also will touch upon the “hidden appeal,” the availability of
discovery in a vacatur action, and whether manifest disregard is still viable
or past its prime. 
