A letter by attorney Frederic Cann in the October 2007 OSB Bulletin makes several important points about attorney ghostwriting, the subject of a July 2007 OSB Bulletin article, “The Ethics of Unbundling.”
Here’s an excerpt from the letter:
“The past few years have seen many articles in the OSB Bulletin about ‘unbundling’ legal services. In the consumer law area the expense of full-service legal representation means unbundled legal services are here to stay. However, lawyers providing unbundled legal services in litigation do have to navigate a “minefield,” because they often are unable to control the ultimate use or presentation of their work product.
In my opinion, Helen Hierschbiel’s July 2007 article, “The Ethics of Unbundling,” correctly concludes that failure to disclose the authorship of ghostwritten pleadings is improper. What is important is: Why?
Ghostwritten pleadings for pro se litigants are usually obvious. It is not the fact that a pro se litigant submits a lawyer’s work that is the problem. Opponents may be frustrated, but they cannot complain of a worthy adversary.
The problem is that opponents, judges and the public need to know who is the ghostwriter. Opponents are entitled to know if the ghost is a lawyer with a conflict of interest. A recent opinion available on PACER, Delso v. Trustees of the Retirement Plan for the Hourly Employees of Merck & Co., Inc., District of New Jersey 04-3009 (Docket Number 58), illuminates the problem. This is true even when the ghostwriter’s client is a lawyer. In other words, it is just as improper for a lawyer to fail to disclose that submissions to a court have been written by an independent contract lawyer.”
Frederic E. Cann, Portland