By Dr. Ken Broda-Bahm:
So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right? Maybe not. Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting. When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development. For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney. If in fact the pro se parties aren't on their own, then they may be gaining an unfair advantage in the briefing process: The best of both worlds, legal assistance plus lowered expectations.
This development, now becoming frighteningly common in personal finance and creditor/debtor litigation, has some important implications for source credibility, fair procedure, and legal ethics. Based on Peter M. Cummins recent article in For the Defense, as well as two related studies on judicial decision making, this Halloween post is going to take a look at how to identify and defend yourself against the legal ghostwriter.
When we think of lawyers providing help on the sly, we might have an image of the "jailhouse lawyer," or the licensed aunt or cousin who steps in to help out a family member. More recently, however, the picture is changing. The number of pro se litigants has hit an all time high, includes both plaintiffs and defendants, and concentrates in the areas of family law, personal finance litigation, and creditor/debtor litigation. Peter Cummins (2011), even cites data from the ABA that 50 to 80 percent of all such cases include pro se litigants on one side, or both sides, of the litigation.
As the number of formally unlawyered cases climb, these parties may nonetheless be relying on an undisclosed advocate for part of the work. Indeed, this kind of partial role is facilitated by the concept of "unbundled" legal services, which are encouraged by the profession. For example, ABA Model Rule 1.2(c), as well as several state bar associations and public interest legal groups, have encouraged limited scope of representation as a way of expanding access to to the courthouse. So a lawyer may be hired to write a brief, conduct a deposition, or evaluate a case for appeal, for example, and have no further involvement in a case.
Those limited roles don't raise questions in most contexts, particularly when they are clear and disclosed. The anonymity of legal ghostwriting, however, raises the question of whether there is representation at all. Rather than just providing a simple point of entry to the legal process, ghostwriting is also fast becoming one part of the business strategy of many debt-settlement or debt-adjustment companies. As related in Cummins' article, these companies will refer clients to their own affiliated firms or lawyers to assist a client in their litigation. The borrower still appears pro se, but still with the advantage of legal assistance in the background. Further complicating the picture, that background assistance is working not only to answer the debt-related claims, but to also assert a number of counterclaims: fraud, violation of consumer protection, or truth in lending acts. As Peter Cummins writes "a pro se litigant has, with the help of a ghostwriting attorney, been transformed from a defendant in a simple collections action into a counterclaim plaintiff seeking compensatory and punitive damages in a friendly state court, with all of the settlement leverage that accompanies that transformation."
The Problem with Legal Ghostwriters
You might think that a judge would give short-shrift to a pro se party, but the opposite appears to be more common: Parties without counsel are likely to have their claims and their written advocacy read in a light most favorable to that party. In addition to adjudicating what the party is claiming and arguing, the judge can end up evaluating what the party could be or should be arguing and claiming, which enlists the judge as an assistant to the pro se advocate. The case of Haines v. Kerner (404 U.S. 519), for example, held that however "inartfully pleaded," materials coming from a pro se party are held "to less stringent standards than formal pleadings drafted by lawyers." So one problem with ghostwriting is that it can cause this "benefit of the doubt" to be unearned and inappropriate.
Beyond the case law, there is actually some research to back that up. Heuer, Penrod, and Kattan (2007), for example, looked at differences between judges and parties in the ways they viewed "fairness" as a matter relating to good procedure or a good outcome. Contrary to what you might expect, in this study it was the judges (in this study, 70 state appellate and 75 trial court judges) who were more concerned with outcome fairness than with procedural fairness. That same tendency would likely reinforce the degree of "grace" given to someone who is perceived as pro se.
The other problem is an ethical one, since legal ghostwriting could keep advocates beyond the sanctioning power of the courts in the case of frivolous filings, for example.
Strategies for Pulling the Sheet Off Your Legal Ghostwriter
One takeaway on this topic is simple: Don't be a ghost. But if you are on the other side, and dealing with one, or wondering if you're dealing with one, then there are a different set of recommendations. The first recommendation is for researchers.
1. Researchers: Look at the Effect of Legal Ghostwriting.
If you are a doctoral candidate or a professor who wants to publish (and not perish), here is a great and timely topic: Study the way that judges would evaluate the same brief based on information that it either is or isn't produced by a pro se party. As Neil Vidmar (2011) suggests: "The number of persons who file and pursue or defend their legal claims with a lawyer (pro se litigants) has been growing, and such litigants have become a major topic of discussion in both federal and state courts.... To what extent do judges make exceptions for these litigants, and to what degree do they focus only on substantive justice outcomes versus providing litigants with a sense of procedural justice?" (p. 61). Answering that question would make for a neat little study, and one that could be referenced in attorneys' briefs seeking to challenge, unmask, or limit a legal ghostwriting arrangement.
2. Lawyers: Check Your Local Rules
There are some jurisdictions that don't permit legal ghostwriting, seeing it as a violation of the attorney's "duty of candor" to the court. These jurisdictions include Colorado, Connecticut, Kentucky, and West Virginia. Federal courts, in addition, have come down against legal ghostwriting (for example, in the case of Ricotta v. California (4 F.Supp. 2d 961, 1998).
3. Lawyers: Unmask the Ghost
Even when undisclosed in the filings, there are some signs of a ghostwriter's presence. For example, Peter Cummins suggests there may be an agreement providing for a contingency fee upon settlement making it clear that someone else stands to gain in the lawsuit. Alternately, a filing to the court, for example, seeking clarification on service requirements, can also flush the ghost out. That may help to make the true source clear enough to the court and deny the "pro se" party the best of both worlds scenario.
- Never Underestimate a Pro Se Plaintiff
- Don't Be Afraid of a Little Humiliation in the Courtroom
- Build Unforgettable Briefs
Cummins, P.M. (April, 2011). The Cat ‘O Ten Tails: Pro Se Litigants Assisted by Ghostwriting Counsel. For the Defense. http://www.dri.org/(S(t5ls5ln2nd3avi55rxkbu155))/articles/YoungLawyers/FTD-1104-Cummins.pdf
Heuer, L.; Penrod, S.; & Kattan, A. (2007). The Role of Societal Benefits and Fairness Concerns Among Decision Makers and Decision Recipients. Law and Human Behavior, 31: 6. Vidmar, N. (January, 2011). The Psychology of Trial Judging. Current Directions in Psychological Science, 20: 58. http://www.jstor.org/pss/25144591
Vidmar, N. (2011). The Psychology of Trial Judging. Current Directions in Psychological Science, 20: 58. http://cdp.sagepub.com/content/20/1/58
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