UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
For Main Opinion click here>>>
1. Dissents from a Utah Ethics Advisory Opinion are understandably rare because of the harmonious working relationship among Ethics Committee members and the shared objective: to provide well-researched and analyzed ethics opinions upon which Utah State Bar members can hopefully rely. It is, therefore, with some trepidation that I dissent from the main opinion. In my view, the main opinion is logically inconsistent with a Tenth Circuit decision that binds Utah lawyers in federal court; incompatible with judicial and ethics opinions in other jurisdictions; and potentially harmful to what I think should be the overriding ideal of all ethics opinions—to ensure justice for clients.
2. To begin, I believe the Committee’s framing of the issue is overly broad. As the Opinion states the issue: “May an attorney provide legal assistance to litigants appearing before tribunals pro se and prepare written submissions for them without disclosing the nature or extent of such assistance?” The Committee’s answer to that question is an unqualified “yes.” Yet, I believe the Committee’s categorical all-or-nothing, black-or-white answer, inclusive of “substantial” with “insubstantial” or quite limited legal services, is ill-advised and contrary to law. To me, the issue is not whether “insubstantial,” unbundled legal assistance for pro se litigants is permissible and ethical. No one has ever disagreed that such assistance is permissible, ethical and encouraged. In fact, Rule 1.2(c) of the Utah Rules of Professional Conduct provides for this type of limited representation.1 Instead, the issue for me, and most jurisdictions that analyze the issue, is whether undisclosed and “substantial” legal assistance, commonly called ghost-lawyering is ethical. Admittedly, the difference between “substantial and “insubstantial” can, in some circumstances, be ambiguous. Presumably, no one would argue that ghost-written appellate briefs or individualized complaints are “insubstantial”— or, to the contrary, that boiler-plate forms available to anyone on the Utah courts web-site (I assume written by lawyers) run afoul of current prohibitions against ghost-lawyering.
3. As described in Nevada Formal Opinion No. 34, issued in 2006,“Ghost-lawyering occurs when a member of the bar gives substantial legal assistance, by drafting or otherwise, to a party ostensibly appearing pro se, with the lawyer’s actual or constructive knowledge that the legal assistance will not be disclosed to the court.”2
4. Citing the same cases and law review articles as does our Committee in Opinion No. 74, the Nevada Opinion, as initially issued, came to an opposite result, concluding, as do I, that “ghost-lawyering is unethical unless the ghost-lawyer assistance and identity are disclosed to the court by the signature of the ghost-lawyer under Rule 11 [the same as Rule 11 of the Utah Rules of Civil Procedure] upon every paper filed with the court for which the ‘ghost-lawyer’ gave ‘substantial assistance’ to the pro se litigant by drafting or otherwise.”3
5. From the outset, there appears to be some disparity of perception between the main opinion and me over the potential harm in ghost-lawyering. The Committee writes, “It is not clear to this Committee at what point such a typical pro se party needing limited scope legal help has obtained ‘extensive’ or ‘substantial’ help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.” The Committee further opines, “Therefore, the ‘unfair advantage’ that pro se parties ostensibly gain through the court’s liberal construction of their pleading—one of the bases for prohibiting ghost-writing—does not appear to apply under Utah law.”