Wednesday, August 1, 2012

FYI: RI Superior Court Sanctions Attorney for "Ghostwriting" Pleadings for Supposedly Pro Se/In Pro Per Consumers

The Rhode Island Superior Court recently held that the practice known as "ghostwriting" -- whereby attorneys anonymously prepare pleadings for purportedly pro se litigants -- is a sanctionable violation of the Rhode Island Superior Court Rules of Civil Procedure and the Rhode Island Supreme Court Rules of Professional Conduct. 
A copy of the opinion is available at:
A debt collection company initiated a lawsuit against a consumer, attempting to collect on alleged credit card debt.  The consumer, purporting to represent himself, filed counterclaims and discovery requests, among other things.  In the course of that litigation, the court was informed by the debt collection company's counsel that the consumer's pleadings had been anonymously prepared by an attorney. 
The court continued the matter in order to consider, among other things, whether the consumer's ghostwriting arrangement violated the applicable ethical and procedural rules. 
The consumer filed for bankruptcy prior to the subsequent hearing.  Thus, the propriety of the ghostwriting arrangement was the sole issue before the court. 
At the hearing, an attorney admitted to preparing the pleadings at issue for the borrower, and indicated that he had prepared similar pleadings for other consumer defendants on several other occasions.  The attorney further indicated that his services were provided pursuant to an agreement between the consumer and a debt elimination company.  That agreement was executed by the consumer, and provided for a limited scope of representation by the attorney.
The court also questioned the consumer at the hearing, who indicated that he had little to no understanding of the legal positions taken in the pleadings he filed. 
Similar to other jurisdictions, the Rhode Island Superior Court Rules of Civil Procedure mandates that attorneys sign all pleadings.  Super. Ct. R. Civ. P. 11 ("Rule 11").  Further, and also similar to other jurisdictions, Rule 3.1 of Article V of the Rhode Island Supreme Court Rules of Professional Conduct provides that attorneys must not bring or defend a proceeding on frivolous grounds. 
The court began its analysis by surveying the current debate on ghostwriting, noting that it hinges on balancing the "need to monitor attorneys' conduct" against ensuring that litigants are able to obtain affordable legal representation.  The court further noted that although federal courts have "predominantly prohibited ghostwriting...[t]he states are split."
The court next determined that it must analyze whether ghostwriting violates the applicable Rules of Professional Conduct.  The court found the "linchpin" of those Rules to be accountability for attorneys, in order to maintain the integrity of the legal profession, and to allow for courts to manage their caseloads by discouraging frivolous conduct. The requirement of Rule 11 -- that attorneys sign their pleadings -- was likewise found to be designed to "hold attorneys accountable." 
With that standard in place, the court had little difficulty holding that "ghostwriting is violative of the fundamental tenets embodied in the rules as presently constituted." 
In so holding, the court placed emphasis on its finding that the anonymity involved in ghostwriting allowed attorneys to evade accountability.  Accordingly, the court found that the attorney's failure to sign the pleadings he prepared "constitutes a sanctionable violation of Rule 11, and further noted that those pleadings were "prepared without a factual or legal basis," likely in order to "hinder or delay the litigation..." 
The attorney argued that his conduct was permissible under the Rules of Professional Conduct, which allow for "limited representation."  The court agreed that limited representation was permissible.  However, it found the representation at issue here to constitute "partial representation," rather than "limited representation," in that it did not serve the client's well-defined limited needs.  Notably, the client was revealed a "complete lack of understanding" of the basis of the pleadings. 
The sanctions levied against the attorney including, among other things, requiring him to provide written notice to opposing counsels on all pending matters for which he anonymously prepared pleadings for self-represented litigants.  The court also referred the matter to the Disciplinary Counsel and the Attorney General for further review. 

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874

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