In a growing number of jurisdictions lawyers may choose or agree to take on part, but not all, of a client’s legal matter with the client’s consent. These agreements are often called ‘limited scope retainers’ or the provision of ‘unbundled legal services’. In Ontario, the Law Society of Upper Canada amended the Rules of Professional Conduct in 2011 to explicitly allow lawyers to enter into limited scope retainers and clarified the requirements when doing so, such as having the retainer in writing and signed by the client. Limited scope retainers can cover a wide variety of situations, including when lawyers ‘ghostwrite’ pleadings (or a factum or motion material, etc.) for a self-represented litigant, but do not appear in court on their behalf or become solicitor of record.
There are many reasons why the LSUC would allow such retainers, including providing an affordable option for litigants who cannot pay for full legal representation and encouraging lawyers to take on manageable and limited pro bono assignments. However, some have questioned whether such unbundled services are ethical, especially in the context of ‘ghostwritten’ pleadings. These critics argue that the judges or opposing counsel may be misled by the material presented, or the clients may not understand what was written by the lawyer or their legal position. Also, some argue that these purportedly unrepresented litigants may take advantage of the courts’ tendency to overlook defects in unrepresented court filings. The main concern, however, seems to be that if a lawyer’s identity and involvement are not revealed they may not be held accountable for potential violations of the Rules of Professional Conduct or for solicitor negligence.
Last month, the top court in Rhode Island examined ghostwriting pleadings for “pro se” or self-represented litigants after three lawyers had been sanctioned by a lower court for this practice. In FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I.2015) the Rhode Island Supreme Court concluded that a lawyer may not ‘ghostwrite’ or otherwise assist a self-represented litigant with the preparation of pleadings, motions, or other written submissions unless the lawyer signs the document and discloses his or her identity and the extent of his or her assistance. However, the lawyer may also indicate that they are not the attorney of record.
After reading this case I wondered, are lawyers in Ontario who ghostwrite for self-represented litigants required to sign a factum they drafted and reveal their identity and extent of involvement? I’m not sure. No Ontario court seems to have commented on this specific unbundled legal service and the Rules of Professional Conduct are silent on the requirement of a ghostwriting lawyer to reveal his or her identity and involvement. The Rules of Civil Procedure do allow a lawyer to enter into a limited scope retainer and not become a solicitor of record. Also the Rules of Civil Procedure state that a party represented by a lawyer under a limited scope retainer is considered to be acting in person (unless the limited scope retainer includes the lawyer acting as solicitor of record). However, the Rules also require the party’s “lawyer” to sign any factum that is filed. So, if you are a drafting lawyer but not the solicitor of record do you still have to sign the factum? Also, is a self-represented litigant required to reveal to the court and opposing party that they are being assisted by a lawyer in a limited way? Or, can they keep this information to themselves should they choose?
In its decision the RI Supreme Court stated that until they are persuaded otherwise, full disclosure of a lawyer’s involvement is the better practice. A lawyer who prepares such documents must still be held to the same standards as a solicitor of record. However, the Court also asked for comments from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.
What was concerning in the Rhode Island case was that the self-represented litigants did not understand their legal positions or the material that had been drafted by the ghostwriting lawyers. They also thought that the drafting lawyers were their retained attorneys of record. This suggests that the lawyers did not do a good job of explaining their limited scope retainer or the legal work that they provided.
Are you a lawyer who ‘ghostwrites’ pleadings for self-represented litigants? Do you sign any facta you draft and disclose your identity and extent of your involvement? If not, should you?
Please note that I do not ghostwrite pleadings for self-represented litigants. I only assist other lawyers. While some may see this as a distinction without a difference, I do believe they are separate types of services with separate considerations.
 For more on “Unbundled Legal Services” or “Limited Scope Retainers” in general in Ontario, see the following: LSUC , CBA , and LawPro .
 This topic has been examined extensively in the United States by various bar associations and courts. See the ABA website on Ethics and Opinions regarding Limited Scope Retainers, setting out opinions from each State.
 See Rule 15.01(4).
I recently read a post on SLAW (a legal website I read often and would encourage others to read as well) which was titled "Ghostwriting of Law Firm Blogs - Unethical? Maybe. Bad Marketing? Definitely." The author questioned whether ghostwritten blogs were "misleading" and whether they undermine a lawyer's duty to "act with integrity" in marketing their services. I clearly disagree.
I take my clients' ideas and opinions and turn them into persuasive, reader-friendly, written marketing pieces. My clients are directly involved in the process. If my execution of their idea is not perfect we discuss any revisions required. My clients put their name on the posts or articles because they are products grown from my clients' ideas and opinions, not mine. I am like a seamstress. I take someone else's design and their fabric, and use my experience and skills to sew the cloth into a wearable garment.
The SLAW author's criticism appears to be directed at lawyers who purchase blog posts from content mills (companies that sell the same blog post - often written by a non-lawyer - to multiple firms). I too would question the actions of a lawyer who purchases a pre-written blog post on a topic the lawyer may not be familiar with and then publishes it under her own name. This behaviour, however, must be distinguished from legitimate legal ghostwriting by experienced lawyers. You cannot lump all legal ghostwriters into the "unethical" category. As an ethical person, I take offence to that.
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of Flex Legal Network Inc., a network of freelance lawyers.