By Jeffrey P. Justman. Full text here.
The Federal Rules of Civil Procedure have not kept pace with the ways in which some lawyers are representing low-income litigants. For example, in its current form, Rule 11 only recognizes traditional “full scope” representation and purely pro se representation, without addressing the ever-increasing possibility that lawyers may represent civil litigants for mere portions of the trial process—the phenomenon known as “limited scope representation.” The failure of the Federal Rules to address this newer representational model is one of several likely causes of an increase in “ghostwriting,” a practice in which attorneys draft court documents for putative pro se litigants without disclosing their assistance. This Note first outlines the ethical and procedural problems ghostwriting poses, paying particular attention to the potential unfairness and inefficiency of the practice, as well as concerns that ghostwriting violates Rule 11. Because previous discussions of ghostwriting have focused largely on ethical implications of the practice, this Note analyzes criticisms of and justifications for ghostwriting from a purely procedural perspective. This procedural analysis reveals that none of the previous discussions of ghostwriting fully resolves fairness and efficiency concerns implicated by the practice. As a result, this Note proposes revising Federal Rule of Civil Procedure 11 to address ghostwriting. Such a solution would, for the first time, address limited scope representation in the litigation context, and provide concrete incentives for attorneys to disclose their assistance to putative pro se litigants.