Duhaime's Law Dictionary


Ghostwriting Definition:

When a lawyer is hired to draft an official court document on behalf of a self-represented litigant.

Related Terms: Unbundling Legal Services

Ghostwriting is part of litigation coaching and is the act of a lawyer who secretly writes a court document, such as a statement of claim or some such other official court document or pleadings, on behalf of a pro se or self-represented litigant who then signs and files the document as his or her own.

Also presented with a hyphen as in ghost-writing or as two words as ghost writing.

In his 2009 article published in Criminal Justice, former American public defender Vincent Aprile not only succinctly proposes that ghost-wring is:

"... authoring a legal document for another who is presumed to be the actual author."

In that article, he goes on to suggest:

"The concept of ghostwriting a legal document ... has over the years been a perplexing problem for lawyers, clients, courts, and even bar associations. In true ghostwriting, there would be no disclosure of the authoring lawyer's involvement to the court or opposing counsel. As a result, a number of analysts and courts have argued that ghostwriting creates major ethical problems for all involved.

"When a court receives a ... motion and supporting memorandum of law, ostensibly submitted pro se by a non-lawyer party, but in reality authored by an undisclosed lawyer, has fraud been committed on the court?

"Is the ghostwriting lawyer absolved of the obligations to the tribunal to investigate fully the facts and the law presented in the document? As the signer of the document in question, is the non-lawyer party now the only one responsible for any factual or legal deficits contained in the filing?....

"Nevertheless, the flexibility of representation and the availability of limited representation afforded by ghostwriting and unbundled legal services should be welcomed by lawyer and client alike. This approach affords more options to clients who either cannot afford a lawyer in an ancillary criminal proceeding or do not want to turn their case over completely to a lawyer. And, in some circumstances, clients will seek to act pro se for strategic reasons in certain proceedings such as collateral attacks on their convictions, parole applications, and appellate motions for discretionary review, but with the behind-the- scenes, undisclosed legal representation of a ghost writer and ghost legal coach."

Another issue was identified in the ABA Formal Opinion 07-466 excerpted below, that ghost-writing "would allow the lawyer to evade responsibility for frivolous litigation."

In May of 2007, the American Bar Association issued Formal Opinion 07-446 which included these words:

"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."

REFERENCES:

 

  • Aprile, Vincent, Ghostwriter: A New Legal Superhero, 23 Crim. Just. 44 (2008-2009)
  • Fisher-Brandveen, Fern; Klempner, Rochelle, Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urb. L.J. 1107 (2001-2002)
  • Goldsmith, Jona, In Defense of Ghostwriting, 29 Fordham Urb. L.J. 1145, (2002).Gurzi v. Elliot, 2011 ONCJ 158
  • NOTE 1: Report of the Unbundling of Legal Services Task Force, Limited Retainers: Professionalism and Practice, Law Society of British Columbia, 2008, page 12.
  • Stevens, Ruth, Unbundling of Legal Services: Selected Resources, 89 Mich. B.J. 55 (2010)
  • In re Merriam, 250 B.R. 724 (2000, Colorado)

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