Can attorneys ghostwrite briefs and petitions for pro se litigants?

We know freelance/contract attorneys can “ghostwrite” briefs for other attorneys, but can they do so for pro se litigants without disclosing their involvement? In a recent opinion, the Second Circuit Court of Appeals said yes. This ABA Journal article references a 2007 ABA Ethics Opinion about attorneys providing undisclosed assistance to pro se litigants. According to the ABA Standing Committee on Ethics and Professional Responsibility:

“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.” Nor did the ABA committee share the concern that pro se litigants will “receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance….”

The ABA committee also concluded that nondisclosure of the fact of legal assistance was not dishonest so as to be prohibited by Rule 8.4(c).


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