YO U N G L AW YERS
The Cat-O’-Ten-Tails
By Peter M. Cummins
A review of the
ethical implications
of ghostwriting, the
different approaches
taken by courts and state
bar associations with
respect to the practice,
and practical strategies
to deal with a pro se
opponent benefitting from
professional assistance.
Pro Se Litigants
Assisted by
Ghostwriting Counsel
Litigation against pro se parties can be a frustrating
endeavor, filled not only with filings by your opponent that
you’ll recall for years to come, but also substantive challenges that are unique to the pro se environment. For
example, courts usually afford pro se litigants a considerable amount of leeway in
both the form and substance of the pleadings that they file, which makes it difficult
to obtain early dismissals. This benefit of
the doubt means that counsel adverse to
pro se litigants must anticipate all arguments that these pro se litigants could possibly assert in addition to defending against
the arguments actually raised. One commentator has gone as far as comparing
litigating against a pro se party to being
“flogged with a cat-o’-nine-tails.” Cornelius D. Helfrich, Facing a Pro Se Litigant,
The Compleat Lawyer 41 (Summer 1997).
Making matters even more difficult,
today’s pro se litigants seem to have added
a tenth tail with which they can flog unsuspecting opposing counsel—a ghostwriting
attorney. Ghostwriting by attorneys—the
drafting of pleadings filed with a court
without disclosing an attorney’s involvement or identity—is not new, but what was
once common primarily in prisoner litiga-
tion involving the classic “jailhouse lawyer” has become increasingly prevalent in
civil litigation. As discussed toward the
end of this article, for example, many individuals facing collections suits by financial institutions and other creditors have
increasingly turned to debt-­relief agencies
and their affiliated “law firms” for help
crafting counterclaims alleging violations
of state and federal law and seeking compensatory and punitive damages, all while
retaining their pro se status. This maneuver not only turns what should be a simple
matter into a much more complex case, but
it also raises a number of ethical considerations. This article discusses the ethical
implications of ghostwriting, the different
approaches taken by courts and state bar
associations with respect to the practice, a
specific example of the sort of ghostwriting becoming prevalent in debtor-­creditor
litigation, and some practical strategies to
effectively deal with a pro se opponent benefitting from professional assistance.
Peter M. Cummins is a member of Frost Brown Todd LLC located in the firm’s Louisville, Kentucky, office. Mr. Cummins is a
commercial litigator, representing a wide variety of clients in all types of business disputes, including non-­compete agreement
enforcement, breach of contract, fraud, Uniform Commercial Code, and banking litigation matters. He is active in DRI’s Commercial Litigation Committee and Young Lawyers Committee, having most recently served as the chair of the Young Lawyers Public
Service Subcommittee for 2009–2010.
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© 2011 DRI. All rights reserved.
Ghostwriting as an
Unbundled Legal Service
Ghostwriting is one facet of a trend known
as “unbundling” legal services, meaning
representing a client on a limited basis.
Providing unbundled legal services is a
practice that is expressly authorized by
most states’ ethics rules. For example, Rule
1.2(c) of the ABA Model Rules of Professional Conduct (Model Rules) permits an
attorney to represent a client on a limited
basis as long as (1) the limitation is reasonable under the circumstances, and (2) the
client gives informed consent to the limited representation. Indeed, bar associations across the country have encouraged
attorneys to provide unbundled legal services in varying ways as a means to offer
access to affordable legal representation
and, in turn, to provide access to justice
to those who might otherwise not have
access to it. See generally ABA Standing
Comm. on the Delivery of Legal Services,
An Analysis of Rules that Enable Lawyers
to Serve Pro Se Litigants (Nov. 2009) (collecting pronouncements by state and local
bar associations); see also John T. Broderick
Jr. & Ronald M. George, A Nation of Do-­It-­
Yourself Lawyers, N.Y. Times, Jan. 2, 2010,
at A21 (an editorial by the then-Chief Justices of the New Hampshire and California Supreme Courts, respectively, urging
“members of the legal profession to join
with us, as many have done, in meeting this
challenge by making unbundled legal services and other innovative solutions—like
self-help Web sites, online assistance programs and court self-help centers—work
for all who need them.”).
Litigators who provide unbundled legal
services to clients are engaged on a limited
basis to perform a discrete set of tasks—
defend a deposition, appear at a contested
hearing, attend mediation for the purpose
of reaching a settlement or, in the case of
ghostwriting, draft pleadings that the client will file with a court without disclosing
the attorney’s assistance. To be sure, litigators represent clients on a limited basis all
the time in situations other than pro se litigation. These situations might include serving as local counsel providing intelligence
on local issues of importance, collecting,
reviewing, and producing electronically
stored information and documents, representing a client on appeal following an
unfavorable trial result, or performing settlement counsel duties while another attorney serves as trial counsel.
Just as varied as the ways in which a litigator can provide unbundled legal services
are the reasons why a client would want to
engage an attorney on an unbundled basis.
In the settlement counsel/trial counsel paradigm, for instance, a client might feel concern about a conflict of interest in asking
its trial counsel to try to settle a case during discovery. Or a particular attorney or
law firm might be able to handle a document review in a more cost-­effective manner than the attorney or law firm handling
the rest of the litigation. As long as the
limited-­scope representation is reasonable
and a client consents to it, lawyers can provide unbundled legal services in unlimited ways.
Putting the “Pro” in Pro Se Litigation
The number of pro se litigants in civil litigation—as both plaintiffs and defendants—is at an all-time high and continues
to increase. See, e.g., Michael W. Loudenslager, Giving Up the Ghost: A Proposal
for Dealing with Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents
Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for
Such Attorneys, 92 Marq. L. Rev. 103, 107–
08 nn.15–18 (2008). While this growth is
occurring all over the country in nearly all
substantive areas, it is most pronounced in
poor areas of the country and most prominently has involved litigating housing
issues, such as landlord-­tenant evictions,
family law, such as divorce and child custody matters, and personal finance matters,
such as collections and bankruptcy. Id. at
107 (citing Deborah L. Rhode, Access to Justice 14 (Oxford. Univ. Press 2004); ABA Sec.
Litig., Handbook on Limited Scope Legal
Assistance: A Report of the Modest Means
Task Force, at 8 (2003)). Indeed, some studies that commentators often cite estimate
that 50–80 percent of all such matters
involve pro se litigants on at least one side,
if not both, of the litigation. Id.
Given these statistics, it would be easy
to conclude that the only reasons for such
a significant increase in pro se litigation are
economic. And while financial factors such
as the poor national economy and the high
cost of legal services are no doubt the big-
gest reasons for the increase in the number
of pro se litigants—a recent survey of pro
se litigants by the University of Maryland
revealed that 75 percent of them had financial reason for proceeding without counsel—other reasons include a frustration
with or distrust of lawyers generally and
a belief that a litigation matter is simple
enough that professional assistance is not
A number of jurisdictions
have taken the same
position as the ABA on
ghostwriting and have
authorized attorneys
to author documents
used by pro se litigants
in civil litigation
required. See University of Maryland Pro
Se Law Center Data, http://www.pro-­selaw.org/.
Another emerging trend in civil litigation is that pro se litigants often rely on an
undisclosed advocate—the ghostwriter.
Indeed, the same economic factors that
would lead an individual to proceed pro
se in a civil litigation matter could also
lead that individual to selectively retain
an attorney to assist with various aspects
of a case. And unsurprisingly, the prohibitive expense associated with hiring
counsel in many situations is the biggest
reason bar associations and public interest groups encourage attorneys to offer
unbundled legal services. Without access
to unbundled legal services at a defined
cost, or perhaps through a contingency fee
arrangement, it is reasoned, a pro se litigant would likely view the risk of going
it alone to be smaller than the reward of
avoiding significant legal bills that he or
she might otherwise incur. And aside from
the monetary implications of hiring counsel, even if only on a limited basis, self-help
websites, search engines, and form books,
while perhaps a suitable substitute for some
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YO U N G L AW YERS
of the very basic elements of civil litigation, can never truly replace the skills of a
trained advocate.
Bar Associations Take Varying
Approaches to Ghostwriting
At its most basic, ghostwriting is simply the
undisclosed authorship of a document used
in litigation for another who appears to be,
When an attorney
ghostwrites something for
someone, that attorney
provides a form of legal
services and, therefore,
ghostwriting establishes an
attorney-­client relationship.
and is therefore presumed to be, the document’s actual author. W. Va. State Bar Lawyer Disciplinary Board, Legal Ethics Op.
2010-01 (Nov. 8, 2010). As discussed in further detail below, filing ghostwritten documents with a court carries consequences
beyond those anticipated by Model Rule
1.2(c), which authorizes an attorney to provide unbundled legal services. For example, Model Rule 3.3 sets forth an attorney’s
duty of candor owed to a tribunal. Whether
a lawyer’s undisclosed authorship of documents used in litigation complies with this
duty is not straightforward. This is especially true when, as is often the case, pro se
litigants receive substantial leeway in the
form and substance of the pleadings that
they file with courts. Should a pro se litigant receive the proverbial benefit of the
doubt when, in fact, his or her pleading has
been drafted by a licensed attorney?
These and other ethics issues have
resulted in varying conclusions about the
propriety of ghostwriting. Unsurprisingly,
because they have generally encouraged
attorneys to provide unbundled legal services, bar associations have largely interpreted their ethics rules to permit some
form of ghostwriting.
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Most notably, the ABA Committee on
Ethics and Professional Responsibility has
interpreted Model Rule 1.2(c) to permit
ghostwriting, reasoning that ghostwriting
is a form of unbundled legal services authorized by Model Rule 1.2(c) not otherwise
prohibited by another ethics rule because
“the fact that a litigant submitting papers
to a tribunal on a pro se basis has received
legal assistance behind the scenes is not
material to the merits of the litigation.” See
ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 07-446 (2007). In this
formal opinion, Undisclosed Legal Assistance to Pro Se Litigants, the ABA reasoned
that a lawyer’s undisclosed assistance to a
pro se litigant submitting papers to a court
is immaterial because either the undisclosed attorney’s assistance will be effective, in which case the fact of assistance
will be evident to the court and, therefore,
no longer undisclosed, or it will be ineffective, in which case the pro se litigant will
not have secured an advantage. Id.
But ABA Formal Opinion 07-446 ignores
the shades of gray that cloud this issue.
For example, because of the advent of
online resources, legal hotlines, and other
resources that were not widely available in
decades past, pleadings filed by today’s pro
se litigants are not always so facially deficient that they could not have possibly been
drafted by an attorney. So it seems misplaced to assume that a court or an adverse
party will uncover an attorney’s assistance
as glaringly obvious. Nevertheless, a number of jurisdictions have taken the same
position as the ABA on ghostwriting and
have authorized attorneys to author documents used by pro se litigants in civil litigation without disclosing that attorneys
have written them, much less the identities
of the attorneys rendering assistance. See,
e.g., ABA Formal Op. 07-446, n.3 (citing
Arizona, Illinois, and Los Angeles, among
other jurisdictions, as interpreting their
respective ethics rules as making any form
of disclosure unnecessary).
A number of other jurisdictions have
concluded that the jurisdiction’s ethics
rules do not permit ghostwriting, concluding that an attorney’s undisclosed authorship of documents filed with a court could
violate the attorney’s duty of candor owed
to a tribunal and, perhaps more worrisome
for a ghostwriting attorney, could consti-
tute a misrepresentation to the court. Id.
at n.4 (citing Colorado, Connecticut, and
Kentucky as jurisdictions that require disclosure of assistance if an attorney provides assistance to a pro se litigant). The
West Virginia State Bar is perhaps the most
recent bar association to have addressed
ghostwriting, ultimately concluding that
it is impermissible, and its reasoning adequately outlines the concerns shared by
many other jurisdictions and practitioners alike.
In Legal Ethics Opinion 2010-01, the
Lawyer Disciplinary Board of the West
Virginia State Bar was asked to consider
“whether an attorney can ghostwrite letters
as a service to pro se litigants.” W. Va. State
Bar Lawyer Disciplinary Board, Legal Ethics Op. 2010-01 (Nov. 8, 2010). While only
asked to opine about whether attorneys
could draft letters, the Lawyer Disciplinary Board actually addressed the propriety of ghostwriting in a number of different
situations.
Before addressing hypothetical situations, however, the Lawyer Disciplinary Board clarified that when an attorney
ghostwrites something for someone, that
attorney provides a form of legal services
and, therefore, ghostwriting establishes
an attorney-­client relationship. Id. at n.1
(citing State ex rel. DeFrances v. Bedell,
446 S.E. 2d 906 (W. Va. 1994)). While
it might be tempting to classify ghostwriting as something other than providing legal advice, the Lawyer Disciplinary
Board appropriately reiterated that regardless of disclosure obligations, a ghostwriting attorney has various ethical obligations
due to his or her attorney-­client relationship with a pro se litigant.
In discussing whether West Virginia’s
ethics rules permit ghostwriting, the Lawyer Disciplinary Board noted that while
Model Rule 1.2(c) of the West Virginia
Rules of Professional Conduct permits lawyers to provide unbundled legal services,
ghostwriting implicates a number of other
West Virginia ethics rules. The Lawyer
Disciplinary Board noted that it needed to
consider Model Rule 3.3 (duty of candor),
Model Rule 3.4 (fairness to opposing parties and counsel), and Model Rule 8.4(c)
(misconduct involving dishonesty, fraud,
deceit, or misrepresentation) of the West
Virginia Rules of Professional Conduct to
determine whether West Virginia’s ethics
rules permitted ghostwriting. W. Va. State
Bar Lawyer Disciplinary Board, Legal Ethics Op. 2010-01, at 2.
The Lawyer Disciplinary Board
explained that ghostwriting implicates all
of those ethics rules because, for example, “[g]host­written documents can also
possibly affect how the tribunal will view
and treat certain litigants, particularly
pro se parties.” Id. at 3. With respect to
pro se parties, the Lawyer Disciplinary
Board stated that courts have a “tendency
to treat pro se litigants with more leniency
than attorneys” and that lenient treatment
could constitute “an unfair advantage.” Id.
The Lawyer Disciplinary Board expressed
concern that a court could find imposing sanctions difficult for filing frivolous
ghostwritten pleadings because a court
would “have to expend time establishing
attorney involvement and, if unsuccessful,”
could not sanction “the attorney responsible.” Id.
After weighing what it considered the
important issues both for and against
ghostwriting, the Lawyer Disciplinary
Board concluded that the rules required
disclosure of the fact of an attorney’s representation, as well as the identity of the
attorney, if that attorney prepared pleadings or other documents filed with a court
or tribunal, or filed with a state or federal
agency in a contested administrative matter. Id. Although unnecessary, “[t]he attorney may state that his or her representation
is limited and describe the limitation.” Id.
Drawing a distinction between contested
and uncontested matters, the Lawyer Disciplinary Board concluded that disclosing
an attorney’s involvement is unnecessary if
a letter or document that he or she prepares
“is not intended to be filed with a tribunal,
or authorship is not otherwise required by
law.” Id. at 4. Finally, the Lawyer Disciplinary Board clarified that assisting a client by
preparing or filling out forms “adopted by
and/or used by tribunals or federal or state
agencies does not require attorney disclosure.” Id.
Finally, some jurisdictions have taken
a middle road, requiring a pro se litigant
to disclose that a pleading was prepared
with the assistance of counsel, but not the
ghostwriting attorney’s identity. See, e.g.,
New York Cty Lawyers’ Ass’n Comm. on
Prof’l Ethics, Ethics Op. 742 (Apr. 16, 2010);
Fla. Bar Ass’n Prof’l Ethics Comm., Ethics
Op. 79-7 (Reconsideration) (Feb. 15, 2000);
Iowa Supreme Court Bd. of Prof’l Ethics &
Conduct, Op. 96-31 (June 5, 1997); Mass.
Bar Ass’n Comm. on Prof’l Ethics, Ethics
Op. 98-1 (May 29, 1998); N.H. Ass’n (May
12, 1999); Ass’n of the Bar of the City of
New York Comm. on Prof’l & Jud. Ethics, Formal Op. 1987-2 (Mar. 23, 1987).
These jurisdictions reason that this middle ground—disclosure without identification—protects the choice of a pro se litigant
to use an attorney on a limited and undisclosed basis while simultaneously preventing the litigant from gaining an unfair
advantage if the litigant actually receives
assistance from counsel.
Federal Courts Have Near Universal
Disdain for Ghostwriting
With state bar associations having largely
authorized ghostwriting as an ethical practice, you would expect courts to express
similar, even if grudging, acceptance of
the practice. And while state courts’ positions vary, depending in large part on their
respective state bar association’s stance on
the practice, federal courts have expressed
nearly universal disdain for ghostwriting
and for the attorneys who ghostwrite for
pro se litigants. See generally Ira P. Robbins,
Ghostwriting: Filling in the Gaps of Pro Se
Prisoners’ Access to the Courts, 23 Geo. J.
Legal Ethics 271, 285–90 (Spring 2010).
The opinion of a federal district court
in California summarizes the conclusion reached by many federal courts that
disapprove of ghostwriting. In Ricotta v.
California, the court held that in some circumstances attorneys might appropriately
ghostwrite for pro se litigants, but “[a]t­tor­
neys cross the line… when they gather
and anonymously present legal arguments,
with the actual or constructive knowledge
that the work will be presented in some
similar form in a motion before the Court.”
4 F. Supp. 2d 961, 987 (S.D. Cal. 1998).
Federal courts cite several of the ABA
Model Rules as the basis for their objections to ghostwriting. For example, several
courts have concluded that the practice of
ghostwriting violates Model Rule 3.3’s duty
of candor owed to a tribunal. See, e.g., Delso
v. Trustees for Retirement Plan for Hourly
Employees of Merck & Co., Inc., 2007 WL
766349, at *17 (D.N.J. Mar. 6, 2007); Johnson v. Board of County Comm’rs for County
of Fremont, 868 F. Supp. 1226, 1232 (D.
Colo. 1994). Other courts have concluded
that ghostwriting could violate Model Rule
8.4(c) by assisting pro se litigants to commit fraud or make misrepresentations to a
court. See, e.g., Wesley v. Don Stein Buick,
Inc., 987 F. Supp. 884, 886 (D. Kan. 1997).
Ghostwriting could
violate Model Rule
8.4(c) by assisting pro se
litigants to commit fraud or
make misrepresentations
to a court.
And still other courts, without citing specific ethical violations, conclude simply
that ghostwriting interferes with a court’s
function of administering justice. See, e.g.,
Laremont-­Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075
(E.D. Va. 1997); In re Young, 849 So. 2d 25,
31 (La. 2003).
Apart from the state ethics rules to
which attorneys must adhere, some federal
courts believe that ghostwriting violates
Federal Rule of Civil Procedure 11. As all
attorneys know, Federal Rule of Civil Procedure 11(b) specifies that “ [b]y presenting
to the court a pleading, written motion, or
other paper… an attorney or unrepresented
party certifies that to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under
the circumstances… the pleading is not
being presented for any improper purpose,”
does not contain frivolous arguments, and
is supported by “evidentiary support” or
“will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery.” Federal Rule of Civil
Procedure 11(c), the teeth of Federal Rule
of Civil Procedure 11, permits a court to
impose “an appropriate sanction” for the
violation of Federal Rule of Civil Procedure 11(b).
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Courts that cite Federal Rule of Civil Procedure 11 as a basis for prohibiting ghostwriting reason that unidentified attorneys
assisting pro se litigants can skirt their
obligations under the rule if they participate in conduct that courts may sanction.
See, e.g., Wesley, 987 F. Supp. at 887. These
courts acknowledge that although they
can sanction a pro se party, sanctions do
If a pro se litigant has
undisclosed assistance
from unidentified counsel,
it is in your best interest to
make a court aware of the
ghostwriter’s assistance.
not provide relief because pro se litigants
often have nothing to lose by filing frivolous pleadings. By extending the reach of
Federal Rule of Civil Procedure 11 to ghostwriting attorneys, courts make unidentified advocates “standing in the shadows of
the Courthouse door” accountable for their
legal work. Ricotta, 4 F. Supp. 2d at 987; see
also Johnson, 868 F. Supp. at 1231–32.
The Pro Se Advantage
The final and perhaps most compelling
reason that federal courts disapprove of
ghostwriting is that pro se litigants have
advantages when they litigate against represented parties. Many courts have concluded over time that they must afford
pro se litigants a sort of “benefit of the
doubt” with respect to pleading standards and legal positions. See, e.g., Haines
v. Kerner, 404 U.S. 519, 520 (1972) (holding that courts should hold papers submitted by pro se litigants, “however inartfully
pleaded… to less stringent standards than
formal pleadings drafted by lawyers”); ABA
Model Code of Judicial Conduct, Rule 2.2
cmt. 4 (adopted Feb. 2007) (“It is not a violation of this Rule [requiring impartiality
and fairness] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters
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fairly heard.”). See also Delso, 2007 WL
766349, at *17; Bauer v. Alaska Dep’t of Corrections, 193 P.3d 1180, 1184 (Alaska 2008);
Am. Express Centurion Bank v. Head, 971
A.2d 90, 91 (Conn. App. Ct. 2009); CIT
Group/Commercial Services, Inc. v. Prisco,
640 F. Supp. 2d 401, 407 (S.D.N.Y. 2009). In
practice, this makes litigating against pro
se parties a challenging proposition and
often precludes dismissal of frivolous complaints or counterclaims at an early stage
of litigation.
Pro se litigants who receive assistance
from attorneys seek to retain this substantive advantage while at the same time
obtain advice from skilled advocates. Many
courts have appropriately concluded that
those litigants have not earned and are
not, therefore, entitled to such benevolent readings of pleadings submitted to
courts. See, e.g., Couch v. Jabe, 2010 WL
1416730, at n.1 (W.D. Va. Apr. 8, 2010)
(concluding that even if a pro se litigant
acknowledges receiving assistance from
an attorney, ghostwriting is still “contrary
to the spirit of the Federal Rules of Civil
Procedure and the privilege of liberal construction afforded to pro se litigants”) (citations omitted); see also Barnett v. LeMaster,
12 Fed. Appx. 774, 778 (10th Cir. 2001)
(quoting Duran v. Carris, 238 F.3d 1268
(10th Cir. 2001)).
The New Generation of Ghostwriters
The bar associations that condone ghostwriting as a way to increase a pro se litigant’s access to justice undoubtedly rely
on the benefits: Attorneys can assist pro se
litigants to develop claims that they might
have, counsel them on applicable statutes of limitation, and generally serve as
a resource that, if used properly, can assist
with efficient administration of justice.
But as compelling as these good intentions
are, the potential for abuse far exceeds the
benefits. As discussed above, ghostwriting
can needlessly complicate and increase the
costs of litigation, while at the same time
keep advocates beyond the reach—and the
sanctioning power—of the courts.
This potential for abuse and needless
complication is nowhere more evident than
in simple collections matters, thousands of
which are filed every year by creditors such
as banks, credit card companies, and mortgage lenders and servicers. In many cir-
cumstances, borrowers who fall behind on
their credit obligations—whether a mortgage, personal loan, credit card, or some
combination of several obligations—retain
the services of debt-­settlement or debt-­
adjustment companies. These companies
tout their ability to reduce the amounts
owed by borrowers by intervening on
behalf of the borrowers and negotiating
with creditors to reduce the debt amounts.
Creditors often work with these companies
because a suitable arrangement resulting in
repayment of the debt is agreed upon without litigation.
But these efforts also often fail, meaning that a creditor must litigate to collect
a debt. And in increasing numbers, debt-­
settlement companies refer borrowers to
“law firms” to assist with the ensuing litigation. These so-called law firms, often affiliated in some direct or indirect way with
the debt-­settlement companies, are then
compensated by the borrowers with contingency fees based on the amount of savings realized by the borrowers from the
ultimate debt settlements.
Frequently when a creditor files suit
against a borrower in default, the borrower will appear as a pro se litigant but
will obtain assistance from a “law firm” in
the litigation. This representation is often
undisclosed or, at best, acknowledged in a
limited way. For example, a pleading filed
by a pro se litigant might state somewhere
that the form of the pleading was obtained
from an attorney, but the pleading will not
identify the attorney and, most troubling,
will not be accompanied by an entry of
appearance by that attorney.
This undisclosed representation might
be less troubling if a borrower simply
answered the complaint and defended
against the collections action. But more
often than not, a borrower—again with
assistance of a ghostwriting attorney—not
only denies the debt obligation but also
asserts a number of affirmative claims
against the creditor. These counterclaims
often vaguely allege violations of state consumer protection and consumer lending
laws, as well as federal laws such as the
Truth in Lending Act.
When a pro se litigant asserts these
types of counterclaims, a creditor faces a
complex, potentially very expensive and
certainly time-­consuming litigation that
began as a simple collections suit. And in
addition to having to defend against the
substantive claims, a creditor will likely
have to do it in state court, without the
ability to remove the matter to federal
court since a counterclaim defendant is
prohibited from removing a matter to federal court. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108–09 (1941) (holding that a counterclaim defendant cannot remove a case to federal court). So
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.
Persels & Associates LLC, which reportedly has provided legal representation to
borrowers facing collection actions on an
undisclosed or partially disclosed basis,
appears to exemplify many of the concerns expressed by courts about ghostwriting, and the firm has also been targeted
by courts and state regulatory agencies
for various shortcomings. In one case, for
example, a bankruptcy court concluded
that its Ruther & Associates affiliate may
have engaged in the unauthorized practice of law by providing legal advice to
an individual in Kansas through its legal
hotline. In re Wood, 408 B.R. 841, 852–
54 (Bankr. D. Kan. 2009). Indeed, Kansas
has been especially unkind to Persels. The
Kansas State Bank Commissioner recently
issued a cease-­and-­desist order that would
close Persels operations entirely in that
state. Firm Challenges Cease/Desist Order,
Topeka Capital-­Journal (Sept. 28, 2010),
“We’ve seen this so-called ‘attorney
model’ in several of our investigations
of illegal debt settlement activity. We
believe some companies have attempted
to organize themselves in such a fashion
to claim an exemption from oversight
by our agency, depriving Kansans of the
protections in the law,” said Kevin Glendening, Deputy Bank Commissioner….
“Companies may claim to be exempt
from oversight due to the involvement
of a local attorney. However, our agency
believes that many of these companies
simply ‘rent’ the local attorney’s law
license in an attempt to avoid the consumer protections contained in the law,
including limits on fees and charges,”
Glendening added. “In some instances,
consumers never speak to or meet with
the attorney. Typically, the attorneys do
not appear in court on behalf of the consumer if they are sued by their creditors.
It can delay the court process and certainly cause great harm to consumers.”
Id. (emphasis added).
Whether other states will join Kansas’s
assault on Persels and other similar entities
is unclear. Regardless, however, the conflict exemplifies the potential downside of
ghostwriting—even for the pro se litigants
seeking help—and also provides even more
justification for adopting, clarifying, and
enforcing ethics rules and laws that regulate ghostwriting.
Strategies for Dealing with Pro Se
Litigants Assisted by Counsel
Whether you represent a bank faced with a
multimillion dollar counterclaim asserted
by a pro se litigant who has ghostwriting
assistance or a defendant sued by a pro se
http://cjonline.com/news/local/2010-­09-­28/­bank_­ plaintiff receiving similar assistance, the
commissioner_­issues_­orders. After investigat- applicable ethics rules and court decisions
ing the activities of Persels, the Kansas discussed above will arm you with the legal
State Bank Commissioner concluded that authority required for the battle. But beyond
Persels had violated the state’s Credit Serv- the ethics opinions and court decisions,
ices Organization Act, a state law that regu- what are some practical strategies that you
lates debt settlement companies. Id. Persels can employ against pro se litigants assisted
has challenged the Kansas State Bank Com- by ghostwriting attorneys to achieve the
missioner’s authority to regulate its busi- best possible results for your clients?
ness, arguing that as a law firm, it is beyond
The obvious first step is to determine
the reach of the commissioner’s author- whether a ghostwriter is assisting your pro
ity. No doubt anticipating that defense, the se adversary. In the case of debt-­settlement
Kansas regulatory agency succinctly sum- entities, the assistance will be at least parmarized its view that Persels’ activities did tially disclosed, if for no other reason than
that the ghostwriter will desire his or her
not constitute the practice of law:
contingency fee upon settlement. In other
cases, as ABA Formal Opinion 07-446
noted, ghostwriting assistance will be clear
“from the face of ” the pleadings. ABA
Comm. on Ethics and Prof’l Responsibility,
Formal Op. 07-446 (2007). If not, however,
written discovery requests or questions in a
deposition on the topic, if answered truthfully, should reveal the fact and extent of
assistance by an attorney.
Once it is clear that a pro se adversary has
ghostwriting assistance, the next step is to
determine the relevant jurisdiction’s rules
on the subject. You will often find these in
the jurisdiction’s ethics rules governing the
legal profession, but you may also find them
in state or federal court decisions on the
topic. These rules will provide a roadmap
for pursuing the disclosure of the identity
of the ghostwriting attorney and will also
assist you in neutralizing whatever advantage pro se litigants normally gain by truly
representing themselves.
As discussed above, the main accommodation courts make for pro se litigants
is most often leeway in the form and substance of the pleadings that pro se parties
file. Therefore, if a pro se litigant has undisclosed assistance from unidentified counsel, it is in your best interest to make a court
aware of the ghostwriter’s assistance. You
can do this creatively through motion practice. For example, a request that a court
clarify your obligations as opposing counsel with respect to things such as service
of pleadings and settlement communications will not only clarify the path for you,
but clarifying your obligations will also
put a court on notice that your adversary
is not truly pro se. This awareness may lead
a court to be less apt to give a pro se litigant that “benefit of the doubt” that he or
she desires. In that same vein, a court that
knows that a pro se litigant has assistance
from counsel may be more inclined to dismiss a claim or strike a frivolous pleading
under Federal Rule of Civil Procedure 11
than if the court is in the dark about the
ghostwriter.
And finally, again depending on the
jurisdiction, a party faced with a pro se
party assisted by counsel may find relief in
state laws that regulate fields other than the
practice of law, such as debt-­relief services
or credit counseling.
Ghostwriting, continued on page 77
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Ghostwriting, from page 45
Conclusion
Anyone who has litigated against pro se
parties assisted by ghostwriters must
understand that, as with “true” pro se parties, no two experiences are alike. But by
becoming aware of applicable ethics rules,
state laws, and court decisions, and follow-
ing the strategies set forth above, you can
neutralize some, if not all, of the cat’s 10
tails.
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