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Ghostwriting & Access to Civil Justice | Balancing Ethical Concerns

Limited Scope Representations in Illinois:
Balancing Ethical Concerns with “Ghostwriting” and Access to Civil Justice

1207927By Natalie Lorenz, Associate
There has been some tension regarding whether attorneys may practice “ghostwriting,” the drafting of pleadings and other court documents by attorneys for clients who go on to represent themselves in court. Some courts, particularly federal courts, claim that the practice is unethical. See, e.g., Chriswell v. Big Score Entm’t, LLC, 2013 WL 315743 (N.D. Ill. Jan 28, 2013). There are two main concerns: first, that ghostwriting exploits the leniency usually afforded to pro se litigants, and second, that it allows attorneys to make misrepresentations to the court, as attorneys usually must sign court documents, affirming that there are grounds for their assertions.

In contrast, some scholars recognize that low-income populations cannot afford full-service legal representation and need attorneys to perform discrete-task legal services. See John C. Rothermich, Ethical and Procedural Implications of "Ghostwriting" for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687, 2691 (1999). One such service is ghostwriting, which provides these populations with access to justice, as numerous individuals who attempt to represent themselves in court wind up forfeiting many of their legal rights.

Attempting to strike a balance between these concerns, the Illinois Supreme Court recently enacted revised rules clarifying the extent to which attorneys may provide discrete-task legal services to pro se litigants in Illinois state courts, and the processes required for doing so.

New subsection (e) to Rule 137 provides, “An attorney may assist a self-represented person in drafting or reviewing a pleading, motion, or other paper without making a general or limited scope appearance.” This sort of assistance may include “providing advice to a party regarding the drafting of a pleading, motion, or other paper, or reviewing a pleading, motion, or other paper drafted by a party.” See Committee Comments.

Under new subsection (c)(6) of Rule 13, if an attorney wants to do more than assist with drafting, but still wishes to provide only limited legal services, she may file a “limited scope appearance” and then withdraw once she fulfills the terms of her representation. However, the attorney must give notice of her limited scope appearance to do this, and must have a written limited scope representation agreement with her client.

These revisions allow attorneys to provide limited assistance to pro se clients, but also address ethical concerns with ghostwriting. Anything beyond simple advice on drafting, or review of materials the client drafted, requires a notice of a limited scope appearance so the court and all other parties are aware that the attorney is working on the case. The rules also require a specific agreement of limited scope representation between the attorney and the client, so that the client knows exactly what his lawyer is obligated–and not obligated–to do for him. As such, the revised Illinois Supreme Court rules appropriately manage the competing concerns of professional responsibility and access to civil justice associated with the practice of ghostwriting.

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