Attorneys are often asked to provide "behind the scenes" assistance to pro se litigants. This can run the range from informal advice on the merits to assistance in locating and applying the applicable law to "ghost-writing" pleadings. Attorneys attempting to stick their toes in the water without getting their hair wet may and up in over their heads. Providing assistance without being the attorney of record can result in malpractice claims or disciplinary charges.
Rule 1.2(c) permits a lawyer to limit the objectives of the representation if the client consents after consultation. Rule 1.2(a) directs that a lawyer shall abide by a client's decisions concerning the objectives of representation. Attorneys have argued that these two rules permit a "pro se" litigant to direct that the attorney's role be limited to ghost-writing and undisclosed participation. Litigants may do so to attempt cost containment.
An agreement to limit the role of the attorney may not limit liability. "An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1." Comment to Rule 1.2. Rule 1.1 provides that a lawyer shall provide competent representation to a client.
An attorney-client relationship is still established in a limited representation and all of the normal rules governing such a relationship will apply. While you may limit your role as counsel, you may not be able to limit your obligations of competence, diligence, communication and avoidance of conflicts of interest. Of course, Rule 1.8(h) prohibits any prospective limitation on malpractice liability without the advice of independent counsel.
Rule 1.16 of the Delaware Lawyers Rules of Professional Conduct (DLRPC) permits an attorney to decline or terminate representation where the client insists on pursuing an objective that the lawyer considers repugnant or imprudent or where the representation will result in an unreasonable financial burden on the lawyer. If you decline to undertake the representation of a client, you may not avoid all liability by simply rendering assistance without entering an appearance.
When a litigant informs the court that they are proceeding "pro se," the court has a right to rely on that representation. Various accommodations may be afforded to the litigant as a result. When an attorney is providing assistance, this representation to the court is not entirely accurate. As a result, the attorney offering such assistance may be in violation of Rule 3.3(a) which prohibits an attorney from making a false statement of material fact or law to a tribunal. The attorney may also be in violation of Rule 8.4(c) which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The Rule 3.4 duty of fairness to the opposing party and counsel and Rule 8.4(d) prohibition against conduct prejudicial to the administration of justice might also come into play.
The ABA Committee on Ethics and Professional Responsibility was asked about a situation in which a litigant purported to appear before the Court pro se. An attorney, without entering an appearance as the attorney of record, counseled and advised the litigant by preparing jury instructions, memoranda of authorities and other documents which were submitted to the Court. The lawyer then "sat in on" the trial and at one point during the trial informed the Court that he was "merely advising the pro se litigant of what he considered to be procedural matters."
Based on the fact that the attorney "sat in on" the trial and later informed the Court of his role, the Committee concluded that his role had not been revealed to the Court previously. As a result, the Committee reasoned that the Court was laboring under a misconception that the litigant was pro se when, in fact, he had received assistance. The Committee believed that each act of assistance from the attorney had the result of producing a misrepresentation to the Court that the action was taken without the assistance of counsel. As a result, the Committee concluded that the attorney was in violation of DR1-102(A)(4) which is the equivalent of DLRPC Rule 8.4(c). ABA Informal Opinion 1414(6/6/78). See alsoKlein v. H.N. Whitney, Goadby & Co., S.D. N.Y., 341 F. Supp. 699 (1971).
A similar result was reached in Johnson v. Board of County Com'rs, D. Colo., 868 F. Supp. 1226 (1994), in which attorneys drafted motions for the client's signature in his "individual capacity" without ever appearing in Court. While the Judge did not rule that the attorneys had engaged in deception or any unauthorized practice of law, the Court did cite Rule 11 of the Federal Rules of Civil Procedure as authority for requiring the attorneys to retroactively sign the pleadings they had prepared. The Court cited Ellis v. Maine, 1st Cir., 448 F. 2d 1325(1971) in which the Court held "If a brief is prepared in any substantial part by a member of the bar, it must be signed by him. We reserve the right, where a brief gives occasion to believe that the petitioner has had legal assistance, to require such signature, if such, indeed, is the fact." at 1328. Similarly, the Association of the Bar of the City of New York opined that "active and substantial assistance" to a client by undisclosed ghost-writing is a misrepresentation to the Court and opposing counsel necessitating withdrawal if the client fails to disclose the attorney's assistance. Opinion 87-3(3/23/87).
Should you, nevertheless, agree to a limited role, you should provide full disclosure of the limits and risks of such representation to the client in writing and secure written consent to the limitations. You should also, to the extent possible, make sure that the "client" does not make misrepresentations to the Court as to your role. You may also assume vicarious liability if your "behind the scenes" contributions are used by the "client" to file inappropriate pleadings or to commit a fraud on the Court.
Before you agree to limit your role, consider that you are also limiting your ability to exercise your professional judgment while incurring most of the liability of complete involvement.
**"Ethically Speaking" is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association.
In Too Deep - Part II
Last month we dealt with the issues involved when an attorney provides "behind the scenes" assistance to pro se litigants in the context of litigation. This most often arises when attorneys "ghost-write" pleadings for litigants. Courts frown on such attorney participation as a misrepresentation to the Court. In some instances, it has been construed as fraud since pro se's are often afforded special considerations which they are not due under the circumstances.
Similar concerns arise when the attorney assistance is outside the context of litigation. Rule 4.2 of the Delaware Lawyers Rules of Professional Conduct ("DLRPC") prohibits a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer. Parties can communicate and discuss the subject of the litigations between themselves. However, a lawyer may not importune another to do that which he or she may not do themselves. It has been held that a lawyer cannot suggest or direct that his client call the other side and simply direct that conversation in lieu of the attorney having direct communication. Trumbull County Bar Assoc. v. Makridis, Ohio Supr., 671 N.E.2d 31 (1966). As a result, ghost-writing a conversation or written communication between a supposedly pro se party and a party known to be represented might violate Rule 4.2 by proxy.
It has also been suggested that it is unethical for a lawyer to send a client to discuss a case privately with a Judge or to knowingly permit a client to do so. Rule 3.5(b) prohibits such contacts by an attorney. WSBA Formal Opinion No. 26 (1953). The same reasoning would bar coaching a pro se litigant to do so. Although no specific Delaware rule addresses the propriety of undisclosed assistance to pro se litigants in or out of Court, Justice Joseph T. Walsh recently expressed a negative view of an attorney's undisclosed participation at a ethics seminar offered by the Delaware Trial Lawyers Association on May 12, 2000. Other states have responded to this issue by adoption of specific rules. The Colorado Supreme Court amended Rules 1.2 (Scope of Representation), Rule 4.2 communication with Person Represented by Counsel) and Rule 4.3 (Dealing with a Represented Party) of the Colorado Rules of Professional Conduct and Rule 11 of the Colorado Rules of Civil Procedure to specifically permit attorneys to limit the scope of the legal services provided and to assist pro se litigants. However, those Rules also require that pleadings drafted with the assistance of counsel identify the counsel and include a Certification of the attorney's role. The comment to the new Rule 4.3 provides that the pro se party assisted by such limited participation is still considered to be a unrepresented party.
The United States District for the District of Colorado specifically rejected this Rule change. They found the changes to be inconsistent with the District Court's previous rulings with regard to Civil Rule 11 and their prior opposition to "ghost-writing" pleadings by counsel. Johnson v. Board of County Commissioners, D. Colo., 868 F.Supp. 1226 (1994), Aff'd. on other grounds, 10th Cir., 85 F.3d 489 (1996).
Upon discovery of undisclosed attorney assistance, it is unclear what sanctions the Courts may impose on either the thought to be pro se litigant or the attorney who was involved in the "ghost-writing". The offending attorney may be referred to disciplinary counsel for violations of various disciplinary rules. Courts have also taken the position that undisclosed-ghost-writing is a violation of Rule 11 which requires that every pleading be signed by the attorney of record. It does not appear however, that Courts can disregard, expunge or prohibit such filings. Pleadings drafted by a non-disclosed non-lawyer are still deemed admissible. Tennessee Attorney General Opinion 94-101, 1994 WL 509446 (9/9/94) and Opinion 94-46 on the Committee on Standards of Conduct Governing Judges, 6th Judicial Cir., Fl. (12/16/94).
Undisclosed assistance by a non-attorney can also constitute the unauthorized practice of law. Delaware State Bar Assoc. v. Alexander, Del. Supr., 386 A.2d 652 (1978). Cf. the rules of various state and federal administrative agencies which permit litigants/applicants to appear with and be assisted by friends, family and others. For a more exhaustive discussion of these topics, I recommend two articles by Barrie Althoff, Chief Disciplinary Counsel of the Washington State Bar Association; "Limiting the Scope of Your Representation - Questions of Cost, Candor and Disclosure" and "Ethical Considerations for Lawyers and Judges when Dealing with Unrepresented Persons". Both can be found in the Washington State "Bar News" in the June and July 1997 editions respectively.
**"Ethically Speaking" is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association.
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