Monday, October 19, 2009

A Risk: Providing Limited Scope Representation In Federal Courts

The propriety of providing limited scope representation to persons proceeding pro se in federal courts remains unclear.   Generally speaking, federal courts discourage – and in some jurisdictions come close to outright forbidding - ghost writing as an unethical practice and as a material misrepresentation in violation of Fed. R. Civ. P. 11.  However, the choice for litigants is not therefore necessarily reduced to acquiring full representation or doing without an attorney.  The crux of the issue is the extent to which an attorney must disclose the assistance rendered, and whether such disclosure pushes the attorney-client relationship from limited representation to something else. See Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997) (holding limited scope representation assistance should be disclosed.)  

From a policy perspective, federal judges have voiced the concern that when an unknown lawyer controls the litigation process on behalf of a pro se client, or ghostwrites documents to be filed with the court, the court will provide more leniency than is due to the ostensibly unassisted pro se litigant. Federal courts are also concerned that a lawyer will circumvent his or her obligations to ensure pleadings are proper if working in “secret,” e.g. fail to perform the appropriate due diligence regarding the contents of documents filed. See Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994) (reasoning ghostwriting gives litigants an unfair advantage in that pro se pleadings are construed liberally and noting ghostwriting enables the evasion of obligations imposed on attorneys.)   

Thus, if a California-licensed attorney appears to be “guiding the course of the litigation with an unseen hand” while operating "behind the scenes,” (Ricotta v. State of California, 4 F.Supp.2d 961, 986 (S.D. Cal. 1998) (set forth review of case law)) or prepares a brief “in any substantial part,” case law urges the attorney advise the court of his or her role in the matter. See Ellis v. State of Maine, 448 F.2d 1325, 1328 (1st Cir. 1971.)

What form of disclosure is sufficient?  Does the attorney need to disclose his or her name and address on a separate filing with the court and sign court documents, or does a mere generic statement in a motion or other document informing the court of a limited representation arrangement suffice?  Although there is no clear direction on this matter, certainly apprising the court in general terms that a pro se litigant is receiving legal counsel is required.  See, e.g., Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) (an attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing.)  In view of the public policy objectives, simply communicating to the court that an attorney is assisting the pro se litigant puts the court on notice.  The identity of the attorney can thereon be quickly made public if required.

Whereas the weight of federal case law - although not categorically prohibitive of limited scope representation - still frowns on the practice of limited scope representation in contrast to California law, federal courts located in California may be changing with the times.  For instance, the Northern District Court recently opened a "Legal Help Center Open to Assist Pro Se Litigants" and at which attorneys will "provide information and limited-scope legal assistance to pro se litigants who have civil matters before the San Francisco or Oakland divisions of the U.S. District Court for the Northern District of California." A good sign.   

I am in the process of providing limited scope representation in a complicated federal case and opposing counsel is resisting my involvement.  Will keep you posted.

No comments:

Post a Comment