Written by Desiree Nordstrom.
In California, the Orange County Bar Association (OCBA) recently published Formal Opinion 2014-1 in which it addressed hiring attorneys using in-state, as well as out-of-state contract lawyers to ghostwrite. In the Formal Opinion, the OCBA walks through an analysis of applicable California and Federal law that applies to the ethical considerations surrounding such relationships. Specifically, the opinion discusses the duty of candor, the duty of honesty, the duties of competence and supervision, and the duty to keep the client informed. In analyzing these ethical considerations, the opinion discusses well-established law addressing an attorney ghostwriting for a pro se litigant. Much of the analysis used to create that established law also is applicable in the situation of an attorney hiring a contract attorney to ghostwrite.
The opinion begins by providing two hypotheticals. The first includes a contract attorney not licensed to practice law in the state in which documents he drafted are filed by the hiring attorney in that state. The second hypothetical includes a hiring attorney and contract attorney who both are licensed in the state the documents are filed in, and the hiring attorney does not disclose to the court the use of the contract attorney.
With the use of established law in the pro se litigant scenario and existing laws applicable to contract attorneys being hired by supervising attorneys, the opinion provides a road map for freelance and contract attorneys to walk by in executing their relationships.
The opinion concluded as follows:
There 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. Only when the client or lawyer seeks to recover his attorneys’ fees must the contract lawyer’s role be disclosed to the court. If, however, the involvement of the contract lawyer constitutes a significant development, then his involvement must be disclosed to the client. Whatever the relationship, however, both lawyers must comply with their ethical obligations, including their duties of competence. In addition, to the extent the contract lawyer is not admitted to practice in California, both lawyers must guard against potential unauthorized practice of law.
There is much more detail involved in the opinion’s analysis. Click through to the opinion for information.