Providing Support to Self-Represented Litigants
Opinion rules allow a lawyer to assist someone representing themselves in court, known as a pro se litigant, by offering guidance on document content and format, drafting those documents, and providing advice on courtroom conduct, such as calling witnesses, presenting evidence, and making opening and closing arguments. The lawyer can do all of this without appearing in the proceeding or disclosing their assistance unless required to do so by law or a court order.
Is Undisclosed Lawyer Assistance Dishonest?
Yes, a lawyer can provide support to a pro se litigant without revealing their involvement, as long as there is no law or court rule mandating disclosure. This approach aligns with the duty of confidentiality, the authority to limit representation scope, and the duty to assist individuals who can’t afford legal representation. Unless there is a court order or legal requirement, remaining undisclosed does not violate the duty of honesty or candor to the tribunal.
In a 2007 opinion by the ABA Committee on Ethics and Professional Responsibility, it was stated that undisclosed lawyer assistance to a pro se litigant is not relevant to the merits of the case and does not constitute dishonest conduct. The court will only consider information presented in the pro se litigant’s documents and statements. Therefore, the lawyer’s assistance can remain undisclosed without breaching ethical obligations.
The New Jersey Perspective
In response to a case involving “ghostwriting” pleadings for a pro se litigant, the New Jersey Supreme Court Advisory Committee on Professional Ethics issued an opinion stating that lawyers providing drafting assistance to pro se litigants are not obligated to inform the court of their role. However, if the lawyer’s assistance is solely to exploit judicial leniency towards pro se litigants, it constitutes providing incompetent advice and violates ethical rules.
Ethical Responsibilities and Confidentiality
When a pro se litigant seeks a lawyer’s advice or assistance outside the courtroom, the lawyer becomes their client, albeit with limited representation and no payment. The lawyer must still adhere to the Rules of Professional Conduct, including avoiding frivolous pleadings and maintaining client confidentiality. Information obtained during the professional relationship cannot be disclosed unless authorized by the client, impliedly authorized, or falling under the exceptions outlined in the Rules.
Recognizing the Need for Assistance
The Rules of Professional Conduct and previous ethics opinions highlight the importance of providing support to individuals who can’t afford legal representation. Lawyers are encouraged to participate in limited legal services programs and offer short-term assistance to clients. These services often include advice on document preparation, courtroom procedures, and guidance on what to expect. However, there is no requirement for the lawyer to disclose their assistance to the court or ensure that the client does so.
Considering the public policy reasons and the absence of a requirement for disclosure in the Rules of Professional Conduct, lawyers can provide assistance to pro se litigants without revealing their involvement unless legally obligated to do so. This allows individuals without representation to receive the necessary guidance while maintaining fairness in the legal process.