In a new ethics opinion, the Orange County Bar Association’s Professionalism & Ethics Committee has opined that, under most circumstances, a California lawyer is not obligated to reveal that a freelance lawyer participated in drafting documents submitted to the court. In the opinion, the Committee expands the use of the term “ghostwriting” from its common legal industry connotation (a lawyer’s participation in drafting a document that a pro se party submits to the court without revealing the attorney’s involvement) to encompass work that one lawyer (whether or not admitted to practice in California) performs for another lawyer.
The Committee first explained that concerns about the duties of candor (Cal. Bus. & Prof. Code §6068(d); Cal. R. Prof’l Conduct 5-200(A), (B)) and honesty (Cal. Bus. & Prof Code §6106) that have led some jurisdictions—although, notably, not California—to require disclosure of an attorney’s involvement in drafting documents submitted by pro se litigants are inapplicable where the ghostwriting is performed for another lawyer. This is so because the freelance lawyer has not made any affirmative statement to the court or in any way misled the court or opposing counsel.
The Committee next opined that an out-of-state lawyer’s ghostwriting (for a lawyer) generally will not constitute the unauthorized practice of law. The Committee quoted with approval the following language from Winterrowd v. American General Annuity Ins., which involved an Oregon lawyer (not admitted in California or pro hac‘d into the Central District) who assisted a California lawyer in a case before the United States District Court for the Central District of California:
[There is no ethical violation] so long as the particular person admitted in that state is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law…
The important requirement in this respect is simply that the local [lawyer] must be admitted in the state and must have the ability to make, and be responsible for making, decisions for the lawyer group.
556 F.3d 815, 824‒25 (9th Cir. 2009). The court noted, however, that, an out-of-state freelance lawyer who has: (1) significant involvement with the client and (2) engages in “sufficient activities in the state or creat[es]…a continuing relationship with a California client that includes the exercise of legal duties” may be considered to be practicing law under Birbrower, Montalbano, Condon & Frank, PC v. Superior Court, 17 Cal. 4th 119, 128 (1998).
Although the issue before it was whether ghostwriting must be revealed to the court and opposing counsel, the Committee next opined that the hiring attorney should inform the client of the hiring of an outside lawyer or firm if the use of the outside lawyer or firm is a significant development. The Committee further recommended disclosing the use of a freelance attorney at the outset of the representation if the hiring attorney knows he will be using an out-of-state freelance attorney. It’s not clear why the Committee limited this recommendation to cases involving out-of-state freelance attorneys, as opposed to California-licensed freelance attorneys. (I recommend disclosing the use of a freelance lawyer to the client and obtaining the client’s consent under all circumstances.)
The Committee noted that a hiring attorney must disclose a freelance lawyer’s involvement in a case to the court and opposing counsel if the client seeks to recover attorneys fees in the litigation.
Finally, the Committee reiterated the bedrock rule that distinguishes the relationship between hiring attorneys and freelance attorneys from the relationship between co-counsel: in the hiring attorney-freelance attorney relationship, the hiring attorney must appropriately supervise the work of the freelance attorney to ensure that the client is represented in a competent manner.
Opinion 2014-1 treads little new ground. While none of the numerous state and local California ethics opinions address whether there is an obligation to disclose to the court and the opposing party a freelance attorney’s participation in drafting court documents, all of the other issues addressed in the opinion are well-settled in California and nationally.