Can a lawyer ethically remain behind the scenes a litigation and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the court and adverse counsel?
For those not in the know, this is the unbundling question. In other words, if a client wants to hire a lawyer to do some of the legal work but not all, can the client pretend to be pro se while using a lawyer to do piece work without telling anyone. This allows the client to only pay for the legal services the client wants without paying for more. If a client either lacks the funds, or just doesn’t think he needs more legal services than bits and pieces, it allows the client to pick and choose, and only pay for what he gets.
On the lawyer side, it allows the lawyer to make a fee from a client he would otherwise lose. It allows the lawyer to conceal his involvement and thus avoid responsibility for his work, particularly if it sucks. It absolves the lawyer from responsibility for failed legal work when the client pays the lawyer for a piece, but the lawyers knows, or would know if he did his job, that the client’s got it all wrong and is absolutely nuts.
Happy ending, right?
Unless of course, one expects a lawyer to be a lawyer rather than a piece worker, or one thinks that the lawyer’s ability to make a quick buck is secondary to his responsibility to serve the larger interests of the person paying him.
Okay, so I’m not the biggest fan of unbundled services. The NYCLA opinion rests entirely on the virtues of unbundled services in making legal services more affordable. That it also happens to be good for lawyers who don’t have enough work is besides the point. The opinion concludes:
We believe that client interests are best served by allowing limited scope representation when the client requests it. Based on the newly adopted Rules of Professional Conduct York, we find that notice of limited representation need not be given in every circumstance.
While the opinion conceded (very nice of them, by the way) that disclosure must be made when ordered by a court (imagine, complying with a court order requires an opinion), what possible explanation is there for concealing the identify of a lawyer who worked on a putative pro se case? While unbundled services are permissible, even if not in my opinion advisable, there is simply no rationale to justify concealing it. And make no mistake about it, failing to alert the court and adversary that there’s a lawyer working in the background in concealment.
Why would NYCLA arrive at this conclusion? It smells like the way to get more business for lawyers, the bits that they can get paid for which would otherwise be lost to the pro se litigant, while covering the lawyer’s butt and absolving them of responsibility for their work. In other words, this is a cash for lawyers deal under the guise of good for clients.
Should lawyers “ghost write” for pro se litigants, why not include the legend “prepared with the assistance of Joe Smith, an attorney duly admitted to practice law in the State of New York?” It’s true. It’s accurate. It holds Smitty, the lawyer who got paid, responsible for his work.
And when Smitty’s client screws it all up and comes back to blame Smitty for his failure to advise his pro se client that he didn’t have a clue what he was doing or what services he needed, maybe Smitty will think twice before cashing that check for $37,52.
No, the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don’t know better. That’s why they let us practice law. So do you really want to be a ghost lawyer?