The Eleventh Circuit Weighs in on Ghostwriting by Ashley Dillman Bruce and Bernice Alden Dillman Courts are confronting the practice of ghostwriting more and more in this evolving legal market that demands better yet cheaper legal services. Ghostwriting is a form of unbundled legal service in which an attorney drafts a document on behalf of a client appearing pro se without formally appearing before the court. In contrast to traditional full-service representation, a lawyer will agree to be responsible for only carefully delineated portions of a client’s case and may agree to provide additional services such as preparing a settlement agreement without participating in the negotiations, researching a legal issue for a client and providing advice on a narrow topic, or reviewing client -drafted documents. Many states have not addressed issues involving ghostwriting in their ethics rules, leaving attorneys unsure of where the lines are drawn. Recently, the Eleventh Circuit implicitly authorized the practice as long as the proper disclosures are made. In Torrens v. Hood (In re Hood), 727 F.3d 1360 (11th Cir. 2013), a debtor who was unable to afford representation for both his bankruptcy and foreclosure needs, paid a $1,000 retainer to a law firm to provide foreclosure defense work. On that same date, a courier filed a pro se Chapter 13 petition via a power of attorney on the debtor’s behalf in the bankruptcy court. The circumstances behind the petition’s preparation and filing were highly disputed -- the debtor contended that he had no knowledge that he had filed for bankruptcy and the law firm maintained that the firm’s secretary acted as a scrivener when she prepared the petition at the debtor’s request by writing the debtor’s oral responses into the corresponding blanks on the petition. Although the bankruptcy court found the debtor’s contention to be untruthful, the court still held that the law firm fraudulently prepared and filed a pro se petition on behalf of the debtor and that the law firm acted as a ghostwriter by failing to sign the Chapter 13 petition and thus perpetrated fraud upon the court. As a sanction against the law firm, the court suspended several attorneys from practice before the bankruptcy court. The court also referred the matter to the office of the United States Attorney for possible criminal prosecution and to the Florida Bar for disciplinary proceedings. On appeal, the district court affirmed the bankruptcy court’s decision, concluding that the surrounding circumstances supported the bankruptcy court’s findings. The law firm appealed the ruling that a fraud was perpetrated on the court by ghostwriting the debtor’s Chapter 13 petition and the finding that the law firm violated Florida Rules of Professional Conduct 4–3.3(a)(1) and 4 –8.4(c). On appeal, the Eleventh Circuit held that while the rules require that an attorney who assists by “drafting” a pro se document identify the document as one prepared with the assistance of counsel, merely filling in blanks on a form does not require such disclosure. In revers- ing the district and bankruptcy courts, the court explored the Rules Regulating the Florida Bar. Rule 4–1.2(c) reflects the Florida Bar’s stance on the issue of attorney ghostwriting, or more simply put, the undisclosed assistance of counsel in the drafting of a pro se document filed with the court. Rule 4–1.2(c) explains that when an attorney assists “by drafting” a pro se document to be submitted to the court, the attorney must identify the document as “[p]repared with the assistance of counsel.” R. Regulating Fla. Bar 4–1.2(c) cmt. Consistent with the plain language of the Rule, the Eleventh Circuit found that it was apparent that the law firm did not “draft” a document for the debtor, nor did the firm “write or compose” the pre-formatted Chapter 13 petition. To the contrary, the secretary recorded answers on a standard fill-in-theblank Chapter 13 petition based on the debtor’s verbal responses and the debtor personally signed the petition. The court explained that “a Chapter 13 petition stands in stark contrast to a ghostwritten pro se brief” which “is a substantive pleading that requires extensive preparation [and] much more than is necessary for the completion of a basic, fill-inthe-blank bankruptcy petition.” In re Hood, 727 F.3d at 1364. With Hood as guidance, attorneys may, within the parameters the Rules Regulating the Florida Bar, draft documents for filing without actually signing them as long as they identify that the documents were “prepared with the assistance of counsel.” If all that is done is simply filling in the blanks on a pre-printed standard form, it seems the notation is not required. This allows attorneys and office staff to assist a client without actually representing the client in the case. As technology progresses and the demands of a rapidly evolving economy become more apparent, lawyers may have no choice but to move toward ghostwriting as a service offered to clients who do not have the resources available for full-service representation. Bernice Alden Dillman (pictured left) has operated her own law practice for over 30 years in Boca Raton and handles family law matters involving dissolution of marriage, spousal support, child support, and child custody, as well as consumer bankruptcy cases. Ashley Dillman Bruce (pictured right) handles complex business bankruptcy and restructuring matters as well as a variety of commercial disputes in both federal and state courts throughout Florida with the law firm of Berger Singerman, LLP.