Recently the Orange County Bar Association published an Opinion on the practice of Ghostwriting by Contract Lawyers and Out-of-State Lawyers. Formal Opinion 2014-1 applies relevant California rules, statutes, case law, and other Bar opinions to two hypothetical situations and examines the ethical issues involved in ghostwriting – the practice of a lawyer writing documents filed with the court without disclosure to the court in a non pro se litigant context. The Opinion concludes in part that, “[t]here is nothing inherently unethical with a client or lawyer hiring another lawyer – often a contract lawyer – to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement.” (p.8)
The first hypothetical provides that California Counsel of Record hires a lawyer not licensed to practice in California, and not a member of Counsel of Record’s law firm to draft pleadings and documents for a case pending in California state court. The second hypothetical also includes the hiring of a lawyer who is not a member of the Law Firm, but who is licensed to practice in California. Neither contract attorney’s involvement is disclosed to the Court under either scenario, and in the second hypothetical the client also is not aware of the contract attorney’s involvement.
The Opinion specifically examines a lawyer’s duty of candor to the court as provided in California Business & Professions Code section 6068(d) and California Rules of Professional Conduct, Rules 5-200(A) and 5-200(B), and a lawyer’s certification obligations under Federal Rule of Court, Rule 11; duty of honesty as articulated in California Business & Professions Code section 6106; duties of competence and supervision pursuant to California Rules of Professional Conduct, Rules 3-110 (A) and (B); the unauthorized practice of law prohibited in California Business & Professions Code section 6125, which applies to non-lawyers and out-of-state lawyers; and the duty to keep the client informed, as provided in California Rules of Professional Conduct, Rule 3-500.
In applying these duties, the Opinion concludes that the Out-of-State Lawyer is not violating his duty of candor to the court or the duty of honesty by ghostwriting because the Out-of-State Lawyer did not make any affirmative statements to the court or take any action to mislead the court. Similarly, neither California Counsel nor the Law Firm need to disclose the Out-of-State Lawyer’s or the Contract Lawyer’s involvement to the court unless a fee request for either of their time is made, because otherwise their involvement is not material to the court. However, the Opinion provides that each of the lawyer’s involvement should be disclosed to the respective client if it would be material to the client and that the disclosure should occur at the outset of the representation if the Law Firm knows it will be using an out-of-state lawyer or contract lawyer. Further, the duty of competence includes the duty to supervise subordinate lawyers, including out-of-state lawyers and contract lawyers. In determining if the Out-of-State Lawyer is engaging in the unauthorized practice of law and the California Counsel and Law Firm are aiding and abetting such practice, one needs to analyze the specific facts of each scenario, including the significance of the contact with the client and state as outlined in Birbower, Montalbano, Condon & Frank, PC v. Superior Court, 17 Cal. 4th 119, 128 (1998). Finally, California Counsel should advise the client that failure to disclose the Out-of-State Lawyer’s or Contract Lawyer’s involvement could prohibit the client from obtaining an award for attorney’s fees for the work done by the Out-of-State Lawyer or Contract Lawyer.
To read the full Orange County Bar Association Formal Opinion 2014-1, please click here. For a full analysis of CA ethical rules pertaining to contract and freelance legal work, please see , “Ethics of Contract Lawyering” (Part 1 and Part 2), Law.com-The Recorder (April, 2013).
Isabelle Smith, formerly a partner with Howrey, LLP, joined Montage Legal Group as a freelance attorney in 2011. Isabelle obtained her law degree from University of California, Hastings in 1998 and served as the Executive Editor of the Hastings Law Journal. She was a partner in the Global Litigation Group of Howrey, specializing in complex business litigation, with a particular focus on professional liability disputes and securities matters. Isabelle has represented and counseled law firms in legal malpractice disputes, and Fortune 500 companies and start-ups in securities class actions, derivative suits, corporate governance, antitrust, merger and acquisition disputes, unfair business practices, and trade secrets. In 2006 and 2007, Isabelle was named a Southern California Super Lawyer Rising Star by Law & Politics Magazine. She was also named Pro Bono Partner of the Year by Howrey, LLP’s Irvine office.
Isabelle has co-authored numerous articles, including “Friends with Benefits” and “It Was My Understanding There Would Be No Patent Law!” for the OC Lawyer magazine.
Isabelle handles high-level legal work for law firms in Orange County and nationwide. For more information on using Isabelle Smith for a litigation project, please contact [email protected]