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Judge
"Exorcises" Ghostwriting By Charles Toutant U.S. Magistrate Judge Tonianne Bongiovanni barred a lawyer from informally assisting a widow in her ERISA suit against Merck & Co.'s pension program, finding "undisclosed ghostwriting is not permissible under the current form of the [Rules of Professional Conduct] in New Jersey." The opinion, in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co. Inc., 04-3009, offers guidance for attorneys who offer "unbundled" services, by which a lawyer performs succinct legal tasks but does not provide traditional full-service representation. Bongiovanni said the practice -- which proponents say increases access to justice for the poor and promotes efficiency in pro se matters -- has created an ethical conundrum, since the Rules of Professional Conduct have not been revised to deal with limited representation. She said that "only after New Jersey adopts revisions to the RPC to allow for the regulation of unbundled legal services, if at all, will their use be acceptable in situations such as the one before the Court." That situation involved Princeton, N.J., solo Richard Shapiro, whom Rosann Delso consulted after her original lawyer withdrew from her suit over a denied payment from her late husband's Merck disability pension. Delso first indicated to the court that Shapiro might take the case, then later said she would proceed pro se. After a defense motion for summary judgment, Shapiro, who had once represented a Merck employees' union, tried to help Delso find a lawyer. Unable to do so, he agreed to assist her informally with legal research and preparation of court submissions. Delso's papers were apparently too good for a pro se litigant, a fact pointed out by defense counsel Randi Knepper in a conference call with the judge. Delso at that point acknowledged she was getting help from Shapiro. The ghostwriting issue came to a head last June when Knepper, of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, N.J., received correspondence from Delso in an envelope bearing the return address of Shapiro's law office. In response, Knepper moved to disqualify Shapiro from further participation, claiming a conflict of interest because of Shapiro's past business dealings with Guy Fleming, a pension program trustee. Bongiovanni declined to disqualify Shapiro under RPC 1.7 or RPC 1.9, the rules governing conflicts and adverse interests, because she found no proof that Shapiro and Fleming ever discussed pension matters. She also declined to disqualify Shapiro for ghostwriting pleadings, but she laid out a rationale for why the practice violates both New Jersey's RPCs and the spirit of federal court rules. First and foremost, she said, courts generally construe pro se litigants' pleadings liberally and are more flexible in applying procedural rules. "Simply stated, courts often act as referees charged with ensuring a fair fight," she said. "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help." Bongiovanni found that undisclosed ghostwriting violates RPC 3.3, which charges lawyers with a duty of candor to the court. Although she found Shapiro advised Delso to answer honestly if questioned about his participation, his failure to affirmatively notify the court of his informal assistance to Delso was "not emblematic of the candid honesty contemplated by RPC 3.3," she wrote. Bongiovanni further found that undisclosed ghostwriting violates the spirit, if not the letter, of Federal Rule of Civil Procedure 11 and Local Civil Rule 11.1, which require attorneys to certify and sign their submissions to a court. Some federal courts have found ghostwriting a per se Rule 11 violation, but Bongiovanni declined to go that far. As for the societal benefits of unbundled services, Bongiovanni remarked, "This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC, ghostwriting is antithetical to the public interest." Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case. Shapiro, who submitted a brief in opposition to his disqualification on conflict-of-interest grounds, says he plans to seek reconsideration of the finding that ghostwriting is improper. He would not say whether he plans to enter an appearance. |
