|Oregon State Bar Bulletin OCTOBER 2007|
Ghostwriting of Pleadings
The past few years have seen many articles in the OSB Bulletin about ‘unbundling’ legal services. In the consumer law area the expense of full-service legal representation means unbundled legal services are here to stay. However, lawyers providing unbundled legal services in litigation do have to navigate a "minefield," because they often are unable to control the ultimate use or presentation of their work product.
In my opinion, Helen Hierschbiel’s July 2007 article, "The Ethics of Unbundling," correctly concludes that failure to disclose the authorship of ghostwritten pleadings is improper. What is important is: Why?
Ghostwritten pleadings for pro se litigants are usually obvious. It is not the fact that a pro se litigant submits a lawyer’s work that is the problem. Opponents may be frustrated, but they cannot complain of a worthy adversary.
The problem is that opponents, judges and the public need to know who is the ghostwriter. Opponents are entitled to know if the ghost is a lawyer with a conflict of interest. A recent opinion available on PACER, Delso v. Trustees of the Retirement Plan for the Hourly Employees of Merck & Co., Inc., District of New Jersey 04-3009 (Docket Number 58), illuminates the problem. This is true even when the ghostwriter’s client is a lawyer. In other words, it is just as improper for a lawyer to fail to disclose that submissions to a court have been written by an independent contract lawyer.
The court is also entitled to know whether the ghostwriter is a lay person or a disbarred lawyer engaging in the unauthorized practice of law.
The danger for a lawyer-ghostwriter is that the material will be presented without adequate disclosure, and predictably so. Lawyer-ghostwriters should, at a minimum, require their clients to agree to disclose their authorship. At least that much is within their control. Failure to do so is a head-in-the-sand approach to a serious issue.
Frederic E. Cann,
A Different Perspective on Guantanamo
I previously wrote to the editor (Letters, June 2007) regarding a recent article on Guantanamo ("Uncharted Waters," April 2007). I considered the article one-sided and not appropriate for this type of publication. The published responses to my letter to the editor seemed to be stupefied that there could be a different perspective from that expressed in the article. While indeed there are different perspectives, the letters to the editor section is not a proper forum to discuss this in detail. Nevertheless, I would like to point the readers to an article (one of many) with just such a different perspective: "In Defense of Guantanamo Bay," by Morris D. Davis; http://yalelawjournal.org/2007/08/13/davis.html.
Chief Justice Expresses Appreciation
As the legislative session commenced in Salem this winter, compensation for Oregon’s trial court judges was ranked at (or near) the bottom nationally, many of the courthouses in this state were in serious need of upgrade, repair or replacement, and the court system’s information technology was over two decades old.
During the session, Judicial Department staff, the Oregon State Bar, Gov. Kulongoski and his staff, Oregon’s business community, labor organizations, local bar leaders and individual lawyers across the state all worked hard on behalf of the judicial branch. The media also heard our message, and editorials were almost universally supportive of addressing the needs. Legislators, who must balance the legitimate needs of thousands of citizens, asked the tough questions and came through in the final hours.
Post-session, Oregon judges have received a 16 percent salary adjustment, with another three percent coming next year. The immediate salary adjustment and the enactment of a neutral Public Officials Compensation Commission will serve to ensure that judicial compensation is commensurate with the important problem solving and leadership roles that judges perform in our communities each day. This legislative support will also help to attract and retain highly skilled lawyers from private practice to a career in judicial service.
In addition to the compensation adjustment, the judicial branch made progress on other initiatives vital to a modern, functional court system. Legislative support during the interim with a court technology committee now permits the judicial branch to prepare to move forward on electronic filing ("e-Court") and other improvements, such as new electronic case and document management systems. These initiatives, and legislative support for them, will benefit future generations of Oregonians.
The branch also secured funding for a much needed and long sought-after interior legislative committee to evaluate our state court facilities and make recommendations regarding improvement and replacement of many of our state’s courthouses.
I personally appreciate the dedication and professionalism of those who recognized a growing crisis and provided the leadership necessary to strengthen the long term institutional integrity and independence of the judicial branch of government.
Most importantly, together we have laid a healthy foundation for working with our legislative leadership in the future. Thank you to all who played a role in educating the public and decision makers on the importance of investing in the judicial branch as part of a strong community and state.
Hon. Paul De Muniz
Chief Justice, Oregon Supreme Court