Friday, August 23, 2013

Ghostwriting in Federal Courts in California - allowed, disfavored, or banned?

Attorney's ghostwriting, a practice for an attorney to draft documents for client's submission in court without revealing who actually wrote the documents, becomes more and more acceptable as a form of practice and is now generally allowed in California (Cal. R. of Ct., Rs 3.36, 3.37), subject to some reasonable ethical considerations. If you ask BAR for an advice, they would refer you to Los Angeles Bar Association's publications on the subject, such as this one from 1999 and a fresh 2012 update. Yet, the view on ghostwriting practice in the Federal courts of this same state remains unsettled.

Cases disfavoring ghostwriting colorfully describe the practice as "standing in the shadows of the Courthouse door" or "guiding the litigation with an unseen hand." US Supreme Court, back in 1949, had uttered strong language against ghostwriting in its decision in Kingsland v. Dorsey, 338 U.S. 318 (U.S., 1949), even though the court in Kingsland had found it insufficient to support a disbarment of an attorney.

There is much more caselaw disfavoring the practice and indicating the court's readiness to dole out sanctions, than those decisions where the ghostwriting was at least tolerated. Yet, the recent tendency was, at least up until 2012, showing some loosening in the grip, finding some instances, when it was more or less tolerated.

One case held it permissible for an attorney to assist family members, friends, and certain "others," but not everyone else:
"In light of these opinions, in addition to this Court's basic common sense, it is this Court's opinion that a licensed attorney does not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom he or she may want to share specialized knowledge. Otherwise, virtually every attorney licensed to practice would be eligible for contempt proceedings. Attorneys cross the line, however, when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented in some similar form in a motion before the Court. With such participation the attorney guides the course of litigation while standing in the shadows of the Courthouse door."  Ricotta v. State of Cal., 4 F.Supp.2d 961 (S.D.Cal., 1998).

Ricotta left it up to readers to decide, who are those "others." I could not come up with a definition of someone not falling into that category. Wouldn't it be true for any client, stemming from the client's very definition and the purpose of attorney-client relationship, to whom that client's attorney "may want to share specialized knowledge"?

Court in Ricotta also held that the ghostwriting is not covered by any rule or procedural statute. A more recent case, which was also lenient to the attorney standing in the shadow, proposed a connection between the ghostwriting and FRCP, Rule 11*, or, more precisely, Local Rule 11-1 . See, Warner v. Reiter, Not Reported in F.Supp.2d, 2010 WL 4704310 (N.D.Cal., 2010). Although Warner's court expressly declined to define "precise limits" of what constitutes permissible ghostwriting practice, the decision provides hints as to what factors are considered, such as: (a) whether the hidden attorney is admitted to practice before this court; (b) whether the hidden attorney remains hidden, when his/her presence is suspected, or comes out and admits participation; and (c) whether that attorney acts in good faith or caused any prejudice.

Another case, Nasrichampang v. Woodford, Not Reported in F.Supp.2d, 2006 WL 3932924 (S.D.Cal., 2006), offered as a solution for a ghostwriting attorney to sign the briefs that attorney authored. I think this approach would takes the "ghost" effect out of the ghostwriting, but at least it does not stay against the "unbundled" services or limited representation.

Seeing this cases developing the thought, it might appear that the evolution of ghostwriting goes toward its full acceptance, in similarity with its development in the state courts. However, more recent cases, from 2012, take a much harsher tone: "The Court advises Plaintiff and anyone who may be assisting him that the practice of “ghostwriting” violates the rules of professional conduct and undermines Plaintiff's pro se status. Ricotta v. State of Cal., 4 F.Supp.2d 961, 987 (S.D.Cal.1998) (“[A]ttorneys cross the line ... when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented ... in a motion before the [c]ourt.”)." Ayvazian v. Moore Law Group,  Not Reported in F.Supp.2d, 2012 WL 2574947 (C.D.Cal., 2012), (emphasis added).

In a difference case from the same district, the court already issued an OSC, for showing why sanctions should not be issued against a pro se litigant and her ghostwriting attorney: Jawien v. County of San Bernardino, Not Reported in F.Supp.2d, 2012 WL 3732814 (C.D.Cal., 2012).

Another case from the same series, but North District, Makreas v. Moore Law Group, A.P.C., Not Reported in F.Supp.2d, 2012 WL 1458191 (N.D.Cal., 2012), takes a similar position. Based on several  out-of-state citations, the court treated ghostwriting as universally disfavored. Decision also contains a reminder that the California Rules of Court, including those allowing ghostwriting and limited representation, are not applicable in Federal jurisdiction.

As a result, the judicial opinion in the state of California can be said as going in two opposite directions: while the state gradually finds more and more support and justification for the unbundled attorney services, limited representation, and ghostwriting, the Federal courts of Californian districts (at least two, Northern and Central)** are actually making a complete u-turn and go back to favor an entire ban on any such practice. In the Federal environment, where the ghostwriting was never fully embraced, such sharp language as coming from Makreas and Ayvazian may chill any future effort of helping unrepresented parties.

Finally, as a matter of post-scriptum, it should be noted that the practice of ghostwriting was once analyzed under a different, adversary, point of view - of the opposing party. A plaintiff attempted to attack a defendant for the defendant's alleged engaging of ghostwriting attorneys, under the reasoning of 42 USC 1983. The court summarily denied that claim. Shalaby v. JacobowitzNot Reported in F.Supp.2d, 2003 WL 1907664 (N.D.Cal., 2003). At least from this vantage point, we currently don't have a split of opinion on ghostwriting.

The evolution of the concept continues.
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* A California case where the ghostwriting practice and Rule 11 were held related is Walker v. Pacific Maritime Assoc., Not Reported in F.Supp.2d, 2008 WL 1734757 (N.D.Cal., 2008).
** Eastern and Southern Districts each have a bankruptcy court decision, holding that a non-disclosure of a law firm's participation in filing bankruptcy petition is linked to violation of FRBP, Rule 2016(b) and 11 USC 329(a): In re Barefield, Not Reported in B.R., 2007 WL 7230977 (Bkrtcy.S.D.Cal., 2007); and In re Bell, 212 B.R. 654 (Bkrtcy.E.D.Cal., 1997).

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