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Diverging Views on “Ghostwriting” Documents for Pro Se Litigants

Monday, July 12, 2010

By Effie D. Silva, Litigation News Associate Editor – July 6, 2010


Courts and bar associations continue to struggle with the potential ethical pitfalls facing attorneys who try to assist pro se litigants by “ghostwriting” documents for the litigants to use in court.

 

According to U.S. District Court Judge James C. Turk of the Western District of Virginia, “ghostwriting” motions for a pro se plaintiff can lead to possible ethical violations and is also “contrary to the spirit of the Federal Rules of Civil Procedure and the privilege of liberal construction afforded to pro se litigants.” Couch v. Jabe.

 

In Couch v. Jabe, the district court wrote that the ghostwriting lawyers were “saved from violating an ethical duty of candor” by a footnote in the pro se plaintiff’s motion. In that footnote, the pro se plaintiff disclosed that he had asked counsel for a party in a related case to draft the motion at issue for him. He claimed to have later revised the motion himself. The district court noted that “ghostwriting” motions for a pro se plaintiff could lead to potential Rule 11 sanctions for the counsel involved and cautioned that additional allegations of ghostwriting would be “appropriately adjudicated.”

 

Diverging Views from the Bench and Bar
“There’s a tension between how some of the courts, including the federal district court in Couch, see ‘ghostwriting’ and how bar associations see it,” says Bruce A. Green, New York, member of the ABA Standing Committee on Ethics and Professional Responsibility.

 

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