Ghostbusters

Ethics rules are clear that lawyers must not make misrepresentations to the court—regardless of whether those representations are written or oral.  An interesting case on ghostwriting just came down from the Eleventh Circuit Court of Appeals, Torrens v. Hood, No. 1215925, ---F.3d---, 2013 WL 4574249 (11th Cir. Aug. 29, 2013).  For those unfamiliar with the term, “ghostwriting” is writing for another person when the other is represented to third parties as the author.    

The Torrens court ultimately found that attorneys who helped a client complete a Chapter 13 bankruptcy petition and file that petition pro se did not violate their ethical duties to the court by failing to disclose their involvement in preparing the petition.  The court made clear, however, that its holding is limited to the facts of the case, leaving open the possibility that it could uphold sanctions against attorneys for ghostwriting other types of documents. 

In Torrens, a secretary for the lawyers wrote the client’s responses to questions contained on the client’s Chapter 13 bankruptcy petition and then helped the client file the petition pro se.  The bankruptcy court found that the lawyers had perpetrated a fraud on the court by failing to sign the petition. 

The Eleventh Circuit reversed, finding that the Florida Rules of Professional Conduct require that an attorney who assists a client in “drafting” a pro se document must identify the document as being one prepared with the assistance of counsel.  The court concluded that the attorneys did not “draft” the bankruptcy petition because they did not “write or compose” the pre-formatted petition.  The court noted that a fill-in-the-blank bankruptcy petition stands in “stark contrast to a ghostwritten brief,” which requires “extensive preparation.” 2013 WL 4574249, at *3.  The court held that the attorneys showed no fraudulent intent and the client gained no unfair advantage by filing the pro se petition he had prepared with his attorneys’ help.