In a decidedly unsatisfying opinion the Second Circuit ruled that Fengling Liu, an immigration lawyer who, inter alia, drafted the papers submitted by pro se litigants without disclosing to the court that it was her work, did not violate her “duty of candor” to the court. The decision reversed the finding of the Committee on Attorney Admissions and Grievances, which concluded that she had, indeed, engaged in unethical conduct by “ghostwriting” pleadings.
For the stay-at-home unbundling lawyer, this strikes at the heart of their practice model, selling bits and pieces of lawyering to clients, without signing onto the case and taking responsibility for both the work they aren’t being paid for as well as the competency of the work they are.
The problem is that the decision does not hold that unbundling is not unethical. Indeed, it recites over and over the reasons why it is.
The court also noted, however, that the trend among bar associations is to endorse unbundling.However, a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. In Duran v. Carris, for example, the Tenth Circuit admonished an attorney for ghostwriting a pro se brief for his former client without acknowledging his participation by signing the brief. 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam). The court stated that the attorney’s conduct had inappropriately afforded the former client the benefit of the liberal construction rule for pro se pleadings, had shielded the attorney from accountability for his actions, and conflicted with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions, and papers be signed by the party’s attorney. See id. at 1271-72; see also, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (disapproving of members of bar “represent[ing] petitioners, informally or otherwise, and prepar[ing] briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar … of representing to the court that there is good ground to support the assertions made”); Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro se Prisoners’ Access to the Courts, 23 Geo. J. Legal Ethics 271, 285 and n.73 (2010) (“The federal courts have almost universally condemned ghostwriting.” (collecting cases)).
On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting. The ethics committee opinions described in the following paragraphs are representative of the range of views on the subject and suggest a possible trend toward greater acceptance of various forms of ghostwriting.
The court let Liu off the hook not because it approved of ghostwriting, but because it concluded that, given these conflicting messages, it was unclear whether it was unethical.
In light of this Court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court.5 We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith.
But then, the court drops a footnote that makes this decision more of a problem than an aid.
However, in light of the importance of the ghostwriting issue, and the fact that the effect of ghostwriting on disqualification issues is not discussed in the ethics opinions described in the text, we recommend to the Court that it consider the amendment of its rules to resolve the matter.
To the extent that Liu found refuge in the confusion, it seems that the court has now given her it’s one free pass, and this decision warns everyone else in the Second Circuit that unless and until the rules are clarified, no one can claim confusion as a safe harbor.
This should put a crimp in the social media twinkies’ pontificating about ignoring their ethical obligations because courts are just not sufficiently forward thinking and too far behind the times. Whether that’s so isnt the point. Try arguing your way out of discipline because somebody on the internet said so, particularly somebody trying to make a living by life-coach other lawyers because they’ve been disbarred, failed in practice or have a sum total of 12 minutes legal experience. Do you really think the Second Circuit is going to be impressed with their number of twitter followers?
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I am a bit chagrined that I had not seen the term “unbundled” used with this meaning. I guess it may be because I am too busy practicing law to keep up with all the social media gurus. 🙂
Keep up the good work, Scott.
Unbundling is social media marketing jargon, intended to make it seem helpful and benign. There are benefits and problems with it, far more than discussed in this decision that was limited to ghostwriting immigration petitions.
Doesn’t offering such a service expand access to lawyers to those who are unable to afford the full array of services that this court implies is an ethical duty? It would seem that the real issue is not whether the rules are unambiguous on this matter, but rather whether anyone was harmed in this arrangement. Should the ethical rules be able to stand in between a willing buyer and seller?
Yes, there are benefits and detriments to unbundling services. What they are is the subject of other posts here and elsewhere, and it would take too long to explain all of them to you. If you give it a great deal of thought, you might be able to figure it out for yourself, but it’s going to take a whole lot more thought than your question.
We do not determine ethics on an ad hoc basis, whether someone was hurt. That no one was hurt in this case militates in Liu’s favor as an equitable factor, but has no bearing on the existence of the rule. The next time, someone could be badly hurt.
But your most important question is:
This goes to the heart of being a lawyer, a professional. Absolutely. Even asking that question suggests that might lack the integrity needed to be a lawyer. We are fiduciaries, responsible for the lives of others. We NEVER ignore our duty to our client, and that includes all the problems we cause for them inherent in unbundling services, just because it’s good for lawyers to make some extra cash. If you do not think ethic should apply, you have no business being a lawyer. If you disagree, please let me know so I can have a talk with your law school.
As attorneys, we are also officers of the court; we have a duty to the court in the service of justice. I honestly cannot fathom how misleading the court into thinking pleadings were authored by a pro se litigant vs. an attorney serves either duty.
But you’re not looking on the bright side. It also absolves the lawyer from ineffective assistance/incompetence, since his name isn’t on it and he’s avoided signing onto the case and has no responsibility to be there when the shit hits the fan, provided the check has cleared.
Please rest assured that my school takes ethics seriously as do I. My comment was not an excuse for shoddy work and I believe in professionalism. (and from reading your blog, I realize that shoddy work is pretty ubiquitous as it is). You may be right that the ethical rules ought to stand in the way of an economic transaction. I will have to give it some more thought. My initial reaction, though, comes from an economics standpoint. If the amount or quality of a thing that is allowed to be offered is artificially raised by law or industry rule, then it cuts off the bottom. No lawyer is going to waste their time giving full service to someone who can only afford part of it. So again, the lower rung of the economic ladder has little or no access to the profession. I just think it’s something to think about. Note too that we have the ethical rules in place and that does not in itself prevent shoddy lawyering. Would it be so bad to allow a freer market in the law?
Yes, it would be a nightmare. The unaffordability of legal services is a huge problem, but providing inadequate, unethical or incompetent services is not a solution. Law is a profession, not a mere economic transaction. We have, as you note, plenty of problems dealing with incompetence and dishonesty. The answer is to push lawyers to do better, not worse.
And don’t tell someone to “rest assured.” It’s worse than meaningless. Your words belie your ethics, not your claim to take them seriously.
You might well be right that it would be a nightmare. Please don’t assume, though, that by arguing for fewer regulations, I am in favor of unethical or shoddy lawyering. You may claim that such lawyering would be the inevitable result of my position, but it does not follow that I would then be in favor of unethical lawyering. (At least that is what it seems you are arguing when you say that my “words belie” my ethics). If that is the argument it seems to be analogous to saying that one who is against the drug war is for drug use or might in fact use them himself.
I would reckon that the majority of good ethical lawyers are not ethical because of the rules. They are ethical and professional because it is the right thing to do by their clients. I would also venture to say that there are those who would be tempted to take short cuts as lawyers that would do so with or without the ethical guidelines. So whether it would be a nightmare as you claim depends largely on a third group — lawyers who are only ethical because they don’t want to lose their license because of the rules. if that group represents a large percentage of the bar, then it would absolutely be a nightmare to rely more on market forces to regulate the industry.
I might? Based on your deep law student insight?
You are wrong. Your inabiilty to distinguish a commercial transaction from a professional one is what belies your claim that ethics matter to you. You don’t have a clue what ethics is, or you wouldn’t have asked. It may be that you haven’t reached that point in your education yet, or simply give yourself more credit than you’re due. Your analogy to the drug war is misguided.
And as for your “reckonin’,” you are wrong again. There is a big and growing swathe of lawyers, young and desperate, for whom legal ethics is very important, unless it gets in the way of making money, in which case it’s a problem to get around. Like you, they don’t see themselves as unethical in the least, even though they are.
Client X comes to your office. He is a native of the PRC who was smuggled into the United States having agreed to pay between 40 and 60 thousands dollars to the snakeheads. He has filed for political asylum, probably based on opposition to the Family Planning policies of the PRC but perhaps based on religious persecution. He begins with an administrative application which is then referred to the Immigration Court. His application was denied and an Order of Removal was entered against him by the Immigration Judge. He then took an appeal to the Board of Immigration Appeals which is ultimately dismissed. He brings out a copy of the BIA decision and asks what else can be done. You explain that his sole option is to file a Petition for Review with the Second Circuit and that there is a strict deadline of 30 days. He asks what the fee is and you tell him knowing that he is already in debt and can’t possibly pay it. You also know that he is working ungodly hours in terrible working conditions at some restaurant or factory in order to pay off the debt to the snakeheads and that he is fearful of what will happen to his family in Foo Chow province if he doesn’t keep paying. He is desperate to keep his case going so his employment authorization won’t be revoked and so he won’t be in danger of being arrested by ICE. He has no right to counsel and there is no agency or organization to refer him to. You explain that he can file pro se but you know that he doesn’t speak a word of English and that there is a strong possibility that he won’t make it through the door at 500 Pearl Street.
A Notice of Petition is a simple document, you can prepare and print one out in less than 5 minutes. It is not at all like preparing a brief or a motion. Put it in his hand and let him go to Court and it will be obvious what he is doing there and the pro se clerk can handle the rest. You practice enough in the Second Circuit to know that there are no regulations about this and you are not performing any substantive tasks. You have kept him from being subject to a final removal order and given him the chance to find representation when a briefing schedule is set. Is this a case of being unethical and attempting to defend your actions by saying “the ends justify the means” or have you provided a service of which you can be proud?
I know what I have done in the past but wonder what I’ll do the next time I’m confronted with that situation.
( I think I would prepare the damn Petition)
So it’s a mitzvah. Do it pro bono. Not that much of a mitzvah? Then you lost the moral high ground.