by Steve LewickyMay an attorney help a self-represented party write court papers or prepare a case for trial?
People that cannot afford to retain an attorney, or don’t wish to pay substantial attorneys’ fees, sometimes ask lawyers whether they can help with drafting court papers or with preparing a court argument, for the unrepresented party to then present himself or herself in court. While the person making the inquiry may not realize it, this presents a number of ethical concerns for the attorney, and for the legal system. The so-called “ghostwriting” of court papers by attorneys on behalf of pro se litigants has received increasing attention in recent years, and some observers see it as a partial solution to the high cost of legal services. The Journal of the American Bar Association published an article this month suggesting that some jurisdictions have become more accepting of the practice. The fact remains, however, that most jurisdictions in the United States take a dim view of attorneys ghostwriting court papers for non-lawyer litigants.
The state bar for each state creates ethical rules that bind attorneys practicing in that state, and these ethical rules vary on issues of ghostwriting and the “unbundling” of legal services. Different court systems also may have their own rules regarding the practice. The Federal court system, for example, has a well-established hostility to ghostwriting by attorneys. In Federal court practice, anonymous drafting of pleadings by attorneys for pro se litigants, without the attorney signing the pleadings, can result in suspension or disbarment from practice before the court. Almost ten years ago, the American Bar Association published a formal ethics opinion approving the practice, however. This ABA opinion is not binding on state bar associations, though, and the state authorities that actually regulate the profession generally have been far less open to the practice.
The term “ghostwriting” refers to an attorney representing a pro se litigant, informally or otherwise, and preparing pleadings, motions, or briefs for the litigant that the assisting lawyer does not sign. The Federal courts have expressed great concern about this practice because the attorney seeks to remain anonymous and therefore potentially outside the professional, ethical, and substantive obligations that are imposed on members of the bar when they sign a court pleading. Courts can view this as a deliberate evasion of the attorney’s ethical obligation to the court. When an attorney signs a court submission, he or she is thereby representing to the court that there are grounds to support the assertions made in the submitted paper. The practice of ghostwriting frustrates this obligation by keeping the identity of the attorney who drafted the paper anonymously. In addition, courts often give liberal interpretation to papers filed by self-represented parties, and allowing pro se litigant to benefit from this latitude while actually receiving counsel from an attorney is a disadvantage to an opposing party that may not have the benefit of a ghostwriting. Some courts have also viewed ghostwriting as a misrepresentation by the attorney, which violates an attorney’s professional responsibility to be candid with the court.
Several years ago, Maryland court rules were amended to expressly permit attorneys and clients to contractually agree to a “limited appearance” by the attorney. In a limited appearance, the attorney agrees to appear in a court proceeding for the client only for a limited, well-defined aspect of the case. For example, a client could retain an attorney to represent the client only in the child support aspect of a family law action, but not in the property aspects of the divorce proceeding. The limited appearance must be for a discrete matter or judicial proceeding, and the notice of appearance filed with the court must be accompanied by an Acknowledgment of Scope of Limited Representation signed by the client, specifying the scope of the limited appearance. This rule does not condone ghostwriting by attorneys in Maryland state courts, but it has moved the Maryland bar some distance down the road toward acceptance of unbundled legal services.
by Steve LewickyNew District of Columbia Requirements for Paid Leave, and Barring Credit Checks
Two new employment laws went into effect in the District of Columbia in April — The District of Columbia Universal Paid Leave Amendment Act and the District of Columbia Fair Credit in Employment Amendment Act of 2016. Both laws will have a significant impact on businesses in D.C., and also on Maryland companies that have D.C. employees.
D.C. employers must give employees eight weeks of family leave
The Paid Leave Act requires employers to provide their employees with eight weeks of family leave, and it applies not only to employers based in D.C. but also to any business outside of the District that pays D.C. unemployment insurance. This brings within the scope of the law an employee that spends more than 50% of his or her work hours within the District of Columbia and has worked for at least a 12-month period prior to the leave request. The law applies to an employee that lives outside the District if he or she works within the District.
A covered employee is entitled to:
- Up to eight weeks or parental leave
- Up to six weeks of family leave to care for a relative, and
- Up to two weeks leave for a serious health condition
Leave is capped at a maximum of eight weeks in any 52-week period.
D.C. employers can no longer use credit ratings in hiring decisions
The new Fair Credit in Employment Amendment Act prohibits an employer from using or investigating credit information during the hiring process. A D.C. employer cannot request, require, or suggest that any current or prospective employee submit any type of credit information through job applications, credit history checks, or interviews. The law also covers interns. There is an exclusion from the law’s prohibitions for applicants for positions requiring a security clearance. The law is enforced by the complaint process through the D.C. Commission on Human Rights, and penalties range from $1,000 to $5,000 per violation.
Employers in the District of Columbia should review their employment policies and:
- Remove questions pertaining to credit information
- Include in their employee handbooks a statement that the company no longer requires information from applicants regarding credit
- Remove all credit information, such as credit background checks, from pre-employment background checks.
