Ghostwriting Can Increase Pro Bono and Expand Access to Justice

By Kelsey Hunt, PBI Law Clerk    

Ghostwriting is a form of limited scope representation that allows attorneys to draft or assist in drafting a pleading, motion, or other document filed by a pro se party without entering an appearance or engaging in formal representation. Many low- and modest-income parties litigate pro se because they cannot afford the high price of full-scale representation. Ghostwriting increases their access to justice by allowing them to receive some legal assistance and more effectively advocate their position during litigation.

Ghostwriting can also expand pro bono work by providing meaningful opportunities for attorneys seeking to do pro bono. Ghostwriting is accomplished with less time and resources and is an ideal project for busy attorneys to take on. Attorneys can provide limited assistance by drafting a document or helping to complete a form and have a large impact on a pro se litigant.

Ghostwriting is beneficial to pro se parties who need legal assistance, attorneys who need bite-sized pro bono opportunities, and courts who benefit from well-argued pro se pleadings that follow court rules and efficiently express legal positions.

Allowing attorneys to provide ghostwriting services without requiring them to disclose their assistance or identity makes it more likely they will provide this service pro bono. Attorneys may fear disclosure will impose broad responsibilities on them, both ethically and procedurally, and they may be uncomfortable identifying themselves on a document when they are not in control of the final product.

Still there are many who oppose undisclosed ghostwriting, questioning the professional ethics of attorneys who engage in the practice, and contending that it is misleading to courts, which apply a more lenient pleading standard to pro se parties.

Nevertheless, many jurisdictions favor permitting undisclosed ghostwriting, because they recognize that it is unlikely a ghostwritten document will materially mislead the court or that pro se parties will receive undue benefit. Ghostwritten documents are easy to spot when compared with usual pro se pleadings, so courts will likely recognize them, and an attorney’s name or bar number is not needed to ensure that they do. If the court does not recognize that an attorney assisted the pro se litigant, then the litigant likely gained no benefit from the attorney’s limited service.

Jurisdictions have varying rules on ghostwriting. The American Bar Association (ABA)’s Ethics Opinion on the matter takes a permissive approach and permits ghostwriting without any required form of disclosure. Some jurisdictions follow this approach, acknowledging the benefits that ghostwriting provides pro se parties, while other jurisdictions are more restrictive, requiring full disclosure of the identity of the attorney who provided assistance. Most federal courts that have addressed the issue fall on the more restrictive side. A few jurisdictions fall in between and require anonymous disclosure (indicating that an attorney provided support, but not identifying the attorney) or disclosure of substantial assistance. Some jurisdictions have not addressed the ghostwriting issue and have no guiding policy. The wide variety of ghostwriting rules means that access to this form of legal assistance is unequal across the country.

To learn more about how ghostwriting increases access to justice for otherwise self-represented litigants, and for a review of the rules and ethics opinions on ghostwriting across all fifty states and the District of Columbia, please see our guide here.