University of Denver

Ghostwriting: The Newest Debate on Unbundled Legal Services

The issue of how to provide litigants with equal access to legal services, regardless of the litigant’s financial status, has plagued the legal community for some time now. One solution that is gaining popularity is unbundled legal services, where lawyers work on and charge clients for only those tasks that they agree to in advance. This service comes in a variety of forms, including legal advice, document review, limited appearances in court, as well as drafting pleading/motions, also known as ghostwriting. 

The ABA Journal recently wrote an article on ghostwriting, highlighting Thomas Ice and his virtual firm, “Ice Legal,” based in Florida. His firm provides a variety of services, including drafting motions for his clients. Mr. Ice explained that he “see[s] it as helping the access-to-justice problem.”

“Not only is everything we are doing ethical but also we are doing something in providing unbundled legal services that is recommended by all the think tanks to solve the access-to-justice problem.”

While his practice falls within the parameters of Rule 4-1.2 of Florida Bar’s Rules of Professional Conduct, the comment to that Rule requires that he writes “Prepared with the assistance of counsel” on each document he ghostwrites. Not all states agree, however, on whether lawyers should be required to disclose their assistance. For example, Nevada requires lawyers to disclose their identity or assistance to their client, while North Carolina takes the ABA’s opinion that disclosure is not necessary. 

Apart from the confusion brought about by states enforcing different rules regarding disclosure, another challenge facing ghostwriting is that some judges and lawyers are strongly opposed to the practice itself. Some judges have verbally expressed their concern that ghostwriting provides self-represented litigants with an advantage over the other party because not only do they receive the help of a lawyer on the side, they also receive the benefit of the doubt from judges simply for being self-represented. Another issue some judges find with ghostwriting is that when they ask the litigant about a particular matter in the ghostwritten document, the litigant has trouble answering the judge’s questions because s/he does not fully understand the law or what was written in their own document. 

These concerns by both lawyers and judges perpetuate the debate about whether lawyers should be allowed to ghostwrite documents. These concerns aside, the legal community would likely agree that ghostwriting, and more generally unbundled legal services, provides self-represented litigants with more flexibility and access to justice than what they normally would be able to afford. As a result, more lawyers are jumping on board and providing such services, either exclusively or in addition to their regular services. 

One way to help bridge the gap between those who support unbundling and those who oppose it is to better educate courts/judges and lawyers on the practice. IAALS, in partnership with the Association of Family and Conciliation Courts (AFCC), has created a Toolkit for Court Leadership regarding unbundled legal services, including an explanation of why courts should encourage unbundled legal services, a checklist of what court leadership should know about unbundled legal services in their state, and resources on court rules, articles, and publications. In addition, IAALS has compiled numerous other resources on unbundling, such as the ABA Model Rules of Professional Conduct on providing limited legal services and how each state’s laws compare. These resources provide stakeholders with the tools to better understand and implement unbundled legal services, including ghostwriting, and highlight their benefits to courts, lawyers, and litigants.