WEST VIRGINIA RECORD

CHARLESTON – The State Bar's Lawyer Disciplinary Board recently ruled that attorneys no longer can offer behind-the-scenes legal help to people.

The new "ghostwriting" rule seemingly will force many people to either hire an attorney or receive no legal assistance at all when they go before the court. In short, a lawyer must either be in a case all the way or not at all.

"While the board finds that ghostwriting as a form of undisclosed representation is permissible under the Rules of Professional conduct, the attorney must disclose his or her identity when preparing pleadings and other documents filed with a tribunal," Board Chairman David A. Jividen wrote in his Nov. 8 opinion. "The Board also finds that when attorneys limit their representation of clients, they should follow certain procedures to ensure that the client is fully aware of and consents to the specific limitations and their possible ramifications."

Ghostwriting is authoring a legal document for another who appears to be the actual author. It can include preparing pleadings or other documents filed with a court or preparing letters or other documents on behalf of a client.

"One significant concern is that preparing documents on behalf of a client that are filed with the court ... without disclosing the attorney's authorship constitutes misrepresentation, fraud or lack of candor with the tribunal as well as with the opposing party," Jividen wrote in the opinion. "Ghostwritten documents can also possibly affect how the tribunal will view and treat certain litigants, particularly pro se parties."

He also notes that if a court determines such a case is frivolous, it would require more time establishing attorney involvement and, if unsuccessful, would not be able to sanction the attorney involved.

The opinion does say attorneys don't need to disclose their identities if a letter or document is not intended to be filed with a court or "authorship is not otherwise required by law." Also, helping a client prepare forms adopted by or used by courts and government agencies does not require disclosure.

The opinion also says attorneys should follow the Rules of Professional Conduct in these ghostwriting instances. It also says when an attorney has such a limited relationship with a client, a written agreement stating what the attorney will be doing -- and won't be doing – for a client is needed.

The West Virginia Access to Justice Commission voiced displeasure with the opinion.

The opinion "will damage the ability of many low- and middle-income West Virginians to obtain access to justice in West Virginia," wrote Chairman Robert S. Baker in a June 9 letter to the LDB. He said it "places unusually strong limitations on the practice of ghostwriting."

"At a time when the American Bar Association and many state bars have voiced support for ghostwriting, the West Virginia Lawyer Disciplinary Board now seeks effectively to do away with the practice. This will injure both pro se litigants and our courts that serve substantial numbers of pro se litigants."

Baker said that changing economic times have brought "a sea change" in how people seek access to justice.

"A litigant with limited means would rather obtain some help than none at all, and courts would rather pro se litigants have some attorney assistance than none at all. Unbundled representation is especially important in West Virginia Family Court, where estimates are that in about 75 percent of the cases both parties are appearing pro se."

Baker says West Virginians deserve better than to be lost without help in a legal system they often don't understand.

"When the most important parts of pro se litigants' lives are at stake, attorneys can do better than leave them out in the cold," Baker wrote.

He said alternatives exist.

"The ability to ghostwrite documents that do not result in an appearance by the attorney is essential to give litigants a guiding light through a confusing legal system," Baker wrote.