For decades, federal judges have punished attorneys who draft documents for pro se litigants. Meanwhile, many states and the American Bar Association have come to accept this practice as beneficial for low-income litigants and the legal system at large. The Second Circuit recently broke from the federal tradition and found that an attorney's so-called "ghostwriting"of litigation documents for pro se litigants was not sanctionable conduct. That court noted the changes taking place at the state level and rejected other federal courts' justifications for sanctioning legal ghostwriting, but did not elaborate as to why legal ghostwriting should be considered acceptable attorney conduct. This Note seeks to fortify the Second Circuit's decision by building a defense for legal ghostwriting against the lines of attack advanced in previous federal decisions. After canvassing the history of legal ghostwriting and its diverging treatments at the state and federal levels, this Note discusses each argument used by federal courts to justify sanctions against ghostwriting attorneys and shows why the ideas undergirding those justifications have eroded over time or were shaky from the beginning. This Note concludes that although there may be times when a ghostwriting attorney should be disciplined, legal ghostwriting is not inherently illegal or unethical and should not be automatically sanctioned.
Tanase, Blake G.
"Give Ghosts a Chance: Why Federal Courts Should Cease Sanctioning Every Legal Ghostwriter,"
Georgia Law Review: Vol. 48:
2, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol48/iss2/8