by Isabelle Smith

“Ghostwriting” occurs when a lawyer drafts documents for another lawyer who files them with the court without disclosing the ghostwriter’s involvement to the court or opposing counsel. As a freelance lawyer and a member of the Orange County Bar Association’s Professionalism & Ethics Committee, the ethical implications of ghostwriting hit particularly close to home. Freelance and contract attorneys alike regularly “ghostwrite” pleadings and motions, which other attorneys then sign and submit to the court.

To provide guidance to lawyers hiring ghostwriters and to the ghostwriters themselves, the Orange County Bar Association published Formal Opinion 2014-1 (“Opinion”) earlier this year on the practice of ghostwriting by contract lawyers and out-of-state lawyers. The Opinion analyzes “whether a lawyer ethically may engage in ghostwriting not directly for a pro se litigant, but rather for another lawyer on behalf of a client.” Opinion at 1-2. The Opinion concludes in part that “[t]here is nothing inherently unethical with a client or lawyer hiring another lawyer—often a contract lawyer—to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement.” Id. at 8. To reach this conclusion, the Opinion applies relevant California rules, statutes, case law, and other Bar opinions to two hypothetical ghostwriting scenarios and examines the ethical implications.

In the first hypothetical provided in the Opinion, California Counsel of Record (“Counsel of Record”) hires a lawyer not licensed to practice in California, not authorized temporarily to practice in California, and not a member of Counsel of Record’s law firm (“Out-of-State Lawyer”) to draft pleadings and documents for a case pending in California state court. Id. at 1. Counsel of Record is licensed to practice law in California, is a member of a law firm, and reviews and signs all ghostwritten documents, which do not identify that Out-of-State Lawyer drafted them. Id. The second hypothetical involves the hiring of a lawyer who is not a member of the law firm, but who is licensed to practice in California (“Contract Lawyer”). Id. Under neither hypothetical is the contract attorney’s involvement disclosed to the court, and in the second hypothetical the client also is not aware of the Contract Lawyer’s involvement. Id.

Specifically, the Opinion examines these two scenarios in conjunction with a lawyer’s duty of candor to the court as provided in California Business & Professions Code section 6068(d) and California Rules of Professional Conduct, Rules 5-200(A) and 5-200(B), and a lawyer’s certification obligations under Federal Rule of Court, Rule 11; a lawyer’s duty of honesty as articulated in California Business & Professions Code section 6106; a lawyer’s duties of competence and supervision pursuant to California Rules of Professional Conduct, Rules 3-110 (A) and (B); the unauthorized practice of law prohibited in California Business & Professions Code section 6125, which applies to non-lawyers and out-of-state lawyers; and the duty to keep the client informed, as provided in California Rules of Professional Conduct, Rule 3-500. Id. at 2-6.

Neither Counsel of Record Nor the Ghostwriter Is Violating His Duty of Candor and/or Honesty by Not Disclosing the Involvement of a Ghostwriter

Duty of Candor
The Opinion first considers “whether by filing papers with the court that do not disclose the ghostwriting author’s efforts, the lawyers involved are violating their respective duties of candor to the court” under Business and Professions Code section 6068(d) and California Rules of Professional Conduct, Rules 5-200(A) and (B). Id. at 2. Section 6068 provides that a lawyer has a duty “[t]o employ, for the purpose of maintaining the causes confided to him or her, those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Cal. Bus. & Prof. Code § 6068(d). California Rules of Professional Conduct, Rule 5-200(A) states that an attorney “[s]hall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth” (Cal. Rules Prof’l Conduct, Rule 5-200(A)) and Rule 5-200(B) provides that an attorney “[s]hall not seek to mislead the [court] by an artifice or false statement of fact or law.” Cal. Rules Prof’l Conduct, Rule 5-200(B).

Because neither the Out-of-State Lawyer nor the Contract Lawyer made an affirmative statement to the court or in any other way misled the court or opposing counsel, the Opinion concludes that neither the Out-of-State Lawyer nor the Contract Lawyer violated the duty of candor. Opinion at 2, 7. In reaching this conclusion, the Opinion examines California Rule of Court 3.37 regarding providing unbundled legal services for pro se litigants, the ABA Opinion on the same issue, and relevant opinions from other jurisdictions. Id. In sum, Rule 3.37 authorizes pro se litigants to file papers without disclosing the involvement of an attorney, and ABA Opinion 07-446 (2007) opined that there was no deception by the ghostwriter lawyer in not disclosing his involvement because the lawyer did not make a statement to the court. Id. Opinion 2014-1 does note that other ethics committees are split, finding that, while some agree with the ABA, others require notification to the court, and still others require notification only if the contribution is substantial. Opinion at 2, 7, note 3. Those jurisdictions requiring disclosure did so in part because courts are likely to apply a more relaxed standard to pro se litigants and, thus, failing to disclose that an attorney assisted was misleading and would provide the pro se with an unfair advantage. The Opinion, however, dismissed those concerns, reasoning that (1) if an attorney assisted a pro se it would be evident to the court; and (2) any concerns over a pro se litigant getting an unfair advantage are not present when lawyers are ghostwriting for other lawyers, which was the case in the subject hypotheticals. Opinion at 3, note 4.¹

Notably, the Opinion does recognize a potential exception where a fee request is sought for services performed by the Out-of-State Lawyer or Contract Lawyer, in which case disclosure of the ghostwriter might be required.² Id. at 3, 7.

Duty of Honesty
The Opinion separately addresses the duty of honesty with specific attention paid to California Business & Professions Code section 6106. The question raised is “whether submission of papers to the court that do not disclose the ghostwriting lawyer’s involvement violates” the duty of honesty. Id. at 3. Section 6106 provides that: “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” Cal. Bus. & Prof. Code § 6106. The Opinion concludes, as it did with the duty of candor, that neither the Out-of-State Lawyer nor the Contract Lawyer is violating his duty of honesty because neither lawyer is making a statement to the court. Opinion at 4. The Opinion reaches this conclusion by relying on the analysis provided in the context of pro se litigants in both ABA Formal Opinion 07-446 and the Los Angeles County Bar Association Ethics Opinion No. 502. Opinion 07-446 “expressly” provides that unless an affirmative statement is made to the court that documents were prepared without legal assistance, when in fact they were, a lawyer’s assistance in a pro se litigant context is not material to the court and thus not a violation of Model Rule 8.4. Id. at 4, note 6. Opinion No. 502 also concludes that it is not a deceptive practice, although lawyers should look to case law for clarification. Id. at 4.

Counsel of Record’s Duties of Competency and Supervision Are Implicated When Using Ghostwriters
In what reads as a general reminder to lawyers, the Opinion also addresses the duties of competence and supervision from the perspective of the Counsel of Record. Id. California Rules of Professional Conduct, Rule 3-110 (A) and (B) maintain that a lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Cal. Rule Prof’l Conduct, Rule 3-110 (A). And Section B defines “competence” to include “(1) diligence, (2) learning and skill, and (3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Id., Rule 3-110 (B). According to the Opinion, State Bar of California Formal Opinion No. 2004-165 includes the duty to supervise within the duty of competence. Opinion at 4. Further under Section C, “[i]f a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by (1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or (2) by acquiring sufficient learning and skill before performance is required.” Cal. Rule Prof’l Conduct, Rule 3-110 (C).

One of the duties that a counsel of record tends to overlook is the duty to supervise. Counsel of record often rely on contract lawyers to meet their ethical obligations under Section C, but in doing so they risk becoming complacent and placing too much responsibility with the contract lawyer, who is not signing the pleadings. Consequently, counsel of record risks failing to properly supervise and review pleadings submitted to the court in derogation of their duty to act competently and to supervise. Opinion at 7-8. Counsel of record are reminded that the duty to supervise is just as important, if not more important, when dealing with contract lawyers as it is when dealing with subordinate partners, associates, and employees at a law firm.

Out-of-State Lawyers Ghostwriting for Cases and Clients in California Could Be Engaged in the Unauthorized Practice of Law, and Counsel of Record Could Be Aiding and Abetting Such Unauthorized Practice
One significant difference in the Opinion’s analysis of the first hypothetical versus the second hypothetical, is that the unauthorized practice of law is implicated only in the first hypothetical. The Opinion poses the question “whether the ghostwriting by Out-of-State Lawyer, who is not licensed in California or otherwise admitted in California, and resides outside of California, constitutes the unauthorized practice of law.” Id. at 4. Pursuant to California Business & Professions Code section 6125, “[n]o person shall practice law in California unless the person is an active member of the State Bar.” Cal. Bus. & Prof. Code § 6125. As the Opinion explores through the case of Birbower, Montalbano, Condon & Frank, PC v. Superior Court, 17 Cal. 4th 119, 128 (1998), this rule applies to both non-attorneys and out-of-state attorneys. Opinion at 4. In determining if the Out-of-State Lawyer is engaging in the unauthorized practice of law and the California Counsel and Law Firm are aiding and abetting such practice, one needs to analyze the specific facts of each scenario, including the significance of the contact with the client and state as outlined in Birbower.³ Id. at 5. In Birbower, the court concluded that an examination of the factors precluded the New York law firm from collecting fees for practicing in California. Id.

As a comparison to the facts in Birbower, the Opinion also analyzes a Central District of California case, Winterrowd v. American General Annuity Ins., 556 F.3d 815 (9th Cir. 2009), in which a non-California licensed Oregon attorney assisted a California attorney on a California case although he was not admitted pro hac vice. Opinion at 5. The Oregon attorney made no court appearances, did not sign any pleadings, and had little contact with opposing counsel and clients. The court held that there was no ethical violation. Specifically, it based its decision on the fact that California counsel “vouched for the work of all the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law ...” and the California counsel “had the ability to make, and be responsible for making, decisions for the lawyer group.” Id.

Based on these cases, the Opinion concludes that, while each scenario must be reviewed on its specific facts, “[a]ssuming there is no significant involvement with Client, ... the mere act of Out-of-State Lawyer’s ghostwriting a document for California Counsel of Record is not likely to constitute unauthorized practice of law in California.” Id. at 7.

If the Use of a Ghostwriter Is a “Significant Development,” Counsel of Record Should Inform the Client
The final duty analyzed in the Opinion is the duty to keep the client informed. In the second hypothetical the Counsel of Record has not disclosed the Contract Lawyer’s involvement to the Client. Opinion at 1. California Rules of Professional Responsibility, Rule 3-500 states that “A [lawyer] shall keep a client reasonably informed about significant developments relating to the employment or representation. Cal. Rule Prof’l Conduct, Rule 3-500 (emphasis added). A lawyer also has a duty “[t]o respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.” Cal. Bus. & Prof. Code § 6068(m) (emphasis added).

These rules raise the question of what constitutes a “significant development.” The Opinion relies on State Bar of California Formal Opinion No. 1994-138, which provides “relevant factors” in determining whether “use of an outside lawyer constitutes a significant development,” including “(i) whether responsibility for overseeing the client’s matter is being changed; (ii) whether the new attorney will be performing a significant portion or aspect of the work or (iii) whether staffing of the matter has been changed from what was specifically represented to or agreed with the client.” In re Wright, 290 B.R. 145, 151-52 (Bankr. C.D. Cal. 2003).

The Opinion concludes that the use of an Out-of-State Lawyer or a Contract Lawyer should be disclosed to the client if it is a material development and that the disclosure should be made at the outset of the case if known or anticipated, and preferably in a written fee agreement.⁴ Opinion at 6-8.

Final Guiding Points for Ghostwriters and Counsel of Record Who Use Them
Having analyzed numerous ABA and Bar opinions, statutes and rules, and case law, the Opinion concludes is as follows:

There is nothing inherently unethical with a client or lawyer hiring another lawyer—often a contract lawyer—to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement. Only when the client or lawyer seeks to recover his attorneys’ fees must the contract lawyer’s role be disclosed to the court. If, however, the involvement of the contract lawyer constitutes a significant development, then his involvement must be disclosed to the client. Whatever the relationship, however, both lawyers must comply with their ethical obligations, including their duties of competence. In addition, to the extent the contract lawyer is not admitted to practice in California, both lawyers must guard against the potential unauthorized practice of law.

Accordingly, in today’s world where lawyers and law firms are increasingly reliant on contract lawyers, the Opinion serves as an important reminder of the ethical duties of both the counsel of record and contract lawyers, and the implications for violating such duties.

ENDNOTES

1. Although the hypotheticals in the Opinion examine the concept of ghostwriting documents to be filed in state court, the Opinion does address an attorney’s certification obligations under Federal Rule 11. Under Rule 11, an attorney “[b]y presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it” certifies that “it is not being presented for any improper purpose”; “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument”; “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”; and “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Fed. R. Civ. P. 11. Some federal courts have held that ghostwriting violates Rule 11. Id. at 3, n.5. The California District Court case addressing this issue in the context of pro se litigants, Ricotta v. State of California, 4 F. Supp. 2d 961, 987-988 (S.D. Cal. 1998) found it unprofessional but not a violation of any rule or law. Id. at 3.
2. The Opinion briefly discusses another federal case, In re Wright, 290 B.R. 145 (Bankr. C.D. Cal. 2003), in which the bankruptcy court held that if the debtor is seeking attorney’s fees for services provided by a contract attorney the debtor must disclose the contract attorneys’ involvement. Id. at 156.
3. “Specifically the court relied on the facts that the lawyer traveled to California to advise a California client, met with the client, made preliminary arbitration arrangements, and negotiated a settlement using attorneys who were not members of the California bar.” Opinion at 5.
4. The Opinion includes a brief discussion on fee-splitting with contract lawyers and a three-part test outlined in State Bar of California Formal Opinion No. 1994-138 for determining whether fee splitting with a contract lawyer is occurring as part of the relationship. Opinion at 6, note 9.

Isabelle Smith is a freelance attorney with Montage Legal Group, LLC. Ms. Smith formerly was a partner at Howrey, LLP in Irvine practicing in Howrey’s Commercial Litigation Group, focusing on attorney professional liability and securities litigation. Ms. Smith is a member of the OCBA Professionalism and Ethics Committee.