Ghostwriting and Its Constitutional Support
![handle is hein.journals/geojlege28 and id is 789 raw text is: Ghostwriting and Its Constitutional Support
DANIEL J. O'BRIEN*
INTRODUCTION
Ghostwriting is a practice in which attorneys assist pro se, i.e., self-
represented, litigants in drafting pleadings or completing other legal documents.1
The attorneys neither sign the pleadings or other documents nor appear in court to
represent the litigants for whom they have ghostwritten.2 Sometimes litigants
disclose ghostwriting to the court; other times, they do not. Ghostwriting
generally fits into three categories:
(a) cases in which the attorney's drafting of a pleading is not disclosed at all [to
the court or the adverse party];
(b) cases in which the litigant informs the Court that an attorney drafted the
pleading, but does not disclose the attorney's name; and
(c) cases in which the drafting attorney's name is disclosed, without that
attorney entering an appearance or signing the pleading.4
Because ghostwriting attorneys do not represent their clients through all aspects
of litigation, their representation deviates from the traditional notion of full-
service representation and constitutes a type of limited scope representation.5
Ghostwriting also occurs when attorneys write documents for other lawyers,6 but
* J.D., Georgetown University Law Center (expected May 2016); A.B., Georgetown University (May 2010).
© 2015, Daniel J. O'Brien.
1. See ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 07-446 (2007) [hereinafter ABA Op.
07-446] (discussing the provision of undisclosed legal assistance to pro se litigants); In re Liu, 664 F.3d 367,
369 70 (2d Cir. 2011).
2. See supra note 1. By taking neither of these actions, ghostwriting attorneys avoid becoming their clients'
attorney[s] of record, see Ira Robbins, Ghostwriting: Filling in the Gaps of Pro Se Prisoners'Access to the
Courts, 23 GEO. J. LEGAL ETHICS 271, 293 (2010), and their clients retain their pro se statuses.
3. See ABA Op. 07-446, supra note 1; Liu, 664 F.3d at 369 n. 1.
4. Liu, 664 F.3d at 369 n.1.
5. See Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URB. L.J. 1145, 1145 (2002) (Many
prospective pro se litigants seek assistance from either non-lawyer practitioners (whose practices are generally
limited to filling in legal forms) or lawyers willing to provide 'unbundled' legal services, such as reviewing
client-drafted pleadings or ghostwriting papers that will be signed by the client and filed pro se.); Howard
Burgoyne Rhodes, Note, Giving Up the Ghost: Alaska Bar Ethics Opinion 93-1 and Undisclosed Attorney
Assistance Revisited, 30 ALASKA L. REv. 231, 234 (2013).
6. For a discussion of the permissibility of ghostwriting by out-of-state lawyers for in-state law firms and by
independent, contract lawyers for law firms, see Orange Cnty. Bar Ass'n Prof'lism & Ethics Comm., Formal
Op. 2014-1 (2014) (concluding that there is nothing inherently unethical with a client or lawyer hiring another
lawyer... [but that] lawyers must guard against the potential unauthorized practice of law).](ViewImageLocal?handle=hein.journals/geojlege28&div=39&collection=&method=preview&ext=.png&size=3)
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Ghostwriting and Its Constitutional Support
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