Wednesday, January 30, 2013

Ghostwriting controversy highlights another difference between state and federal practice

Tonight's Chicago Daily Law Bulletin carries an article by Patricia Manson, "Judge warns against ghostwriting briefs" (subscription required).

In a trademark dispute case, according to Manson's story, U.S. District Court Judge Edmond E. Chang has ordered an ostensibly pro se litigant, performance artist Erica Chriswell, to file an affidavit disclosing "whether anyone helped her draft her briefs."

Quoting now from Manson's story:
"The court has its own suspicions that Chriswell enlisted the help of a lawyer or someone with legal knowledge to draft her response," Chang wrote. "Chriswell's brief contains robust legal analysis and argument that is indicative of a licensed attorney's work."

Citing Haines v. Kerner, 404 U.S. 519 (1972), Chang noted that courts generally give more leeway to litigants who represent themselves than to litigants who receive representation by counsel.

"Thus, it would be patently unfair for a pro se litigant to benefit from the less-stringent standard applied to pro se litigants if, in fact, she is receiving substantial behind-the-scenes assistance from counsel," he wrote.
Yet, as Manson's article notes, there is no clear prohibition against 'ghostwriting' pleadings for pro se litigants. According to Manson's article, the ARDC's Jim Grogan acknowledges that the rules regarding lawyers providing assistance to pro se litigants are not "well-settled." Moreover, according to Manson's story,
Attorney Cheryl I. Niro of RobinsonNiro LLC noted that courts set up help desks to assist pro se parties with their pleadings.

And she said the American Bar Association issued an ethics opinion in 2007 stating that lawyers may provide legal assistance to pro se litigants without disclosing that assistance to a court.
Judge Chang's order suggests that pro se litigants in federal court are entitled to some special consideration.

But the rules are different in state courts.
[A] party who chooses to proceed pro se must comply with the same rules of proceedings as an attorney." Bohannon v. Schertz (1974), 21 Ill.App.3d 149, 315 N.E.2d 316.
Paddock v. Department of Employment Security, 184 Ill.App.3d 945, 540 N.E.2d 1053, 1055 (1st Dist. 1989). See also, Dolido v. Zenith Radio Corp., 194 Ill.App.3d 268, 550 N.E.2d 1225, 1228 (1st Dist. 1990) (pro se plaintiff seeking voluntary dismissal under §2-1009 must strictly comply with statute "while traversing the procedural minefield of litigation") and Twardowski v. Holiday Hospitality Franchising, 321 Ill. App. 3d 509, 511, 748 N.E.2d 222 (1st Dist. 2001) ("plaintiff's pro se status does not relieve him of the burden of complying with the format for appeals as mandated by the supreme court rules").

If pro se litigants are treated exactly the same as parties represented by lawyers then it doesn't matter whether an attorney takes credit for his or her work on behalf of the technically self-represented party. Having a lawyer in the background who only drafts papers may be less expensive for a litigant and (arguably, at lest at some stages of the litigation) almost as effective as having counsel in court. On the other hand, if a court is obliged to give a pro se litigant extra consideration, having a lawyer lurking in the wings may confer an unfair advantage. An attempt to give a pro se party a better chance in court may have the unintended consequence of making it impossible for the party to remain pro se -- and increase the party's costs besides. But Judge Chang's concern about the propriety of 'ghostwriting' should be of concern only in the federal courts.

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