To Ghost Write, or Not to Ghost Write, that is the Ethical Question

The 11th Circuit recently ruled that two attorneys did not violate the Florida Rules of Professional conduct for not signing a standard pre-formatted Chapter 13 petition for bankruptcy that they helped a pro se litigant prepare. The attorneys prepared the petition at the pro se litigant’s request using the pro se litigant’s oral responses. After completing the petition, the attorneys had the pro se litigant sign the petition himself but handled the actual filing of the petition with the court.

The U.S. Court of Appeals for the 11th Circuit reversed the bankruptcy court order sanctioning the attorneys for violating the Florida Rules of Professional Conduct 4-3.3 (Candor to the Tribunal) and 4-8.4 (fraud or dishonesty) and 18 U.S.C. § 157(3), a federal statute criminalizing fraud in bankruptcy proceedings. This hybrid collaboration called into question the ethical issue of ghostwriting.

Judge Charles Reginald Wilson, of the 11th Circuit, considered Florida Rule of Professional conduct 4-1.2(c), which states, “a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.”  The court further addressed, the comment to this rule that advises, a lawyer is not obligated to sign a document assisting pro se litigant but must indicate “Prepared with the assistance of counsel” on the document to avoid misleading the court. Finally, the court found that the lawyers did not “draft” a document as defined by the plain language by merely filling out the standard pre-formatted Chapter 13 petition.

While Judge Wilson did recognize in his opinion that federal circuits are split regarding the propriety of attorney ghostwriting, here he found that “a Chapter 13 petition stands in stark contrast to a ghostwritten pro se brief.”

Click here for the full text of the 11th Circuit’s opinion.

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