Utah Bar Journal

Opinion: Under the Utah Rules of Professional Conduct, and in the absence of an express court rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure to others of the nature or extent of such assistance. Although providing limited legal help does not alter the attorney’s professional responsibilities, some aspects of the representation require special attention.

DISSENT
Dissents from a Utah Ethics Advisory Opinion are understandably rare because of the harmonious working relationship among Ethics Committee members and the shared objective: to provide well-researched and analyzed ethics opinions upon which Utah State Bar members can hopefully rely. It is, therefore, with some trepidation that I dissent from the main opinion. In my view, the main opinion is logically inconsistent with a Tenth Circuit decision that binds Utah lawyers in federal court; incompatible with judicial and ethics opinions in other jurisdictions; and potentially harmful to what I think should be the overriding ideal of all ethics opinions – to ensure justice for clients.

To begin, I believe the Committee’s framing of the issue is overly broad. As the Opinion states the issue: “May an attorney provide legal assistance to litigants appearing before tribunals pro se and prepare written submissions for them without disclosing the nature or extent of such assistance?” The Committee’s answer to that question is an unqualified “yes.” Yet, I believe the Committee’s categorical all-or-nothing, black-or-white answer, inclusive of “substantial” with “insubstantial” or quite limited legal services, is ill-advised and contrary to law. To me, the issue is not whether “insubstantial,” unbundled legal assistance for pro se litigants is permissible and ethical. No one has ever disagreed that such assistance is permissible, ethical and encouraged. In fact, Rule 1.2(c) of the Utah Rules of Professional Conduct provides for this type of limited representation.1 Instead, the issue for me, and most jurisdictions that analyze the issue, is whether undisclosed and “substantial” legal assistance, commonly called ghost-lawyering is ethical. Admittedly, the difference between “substantial and “insubstantial” can, in some circumstances, be ambiguous. Presumably, no one would argue that ghost-written appellate briefs or individualized complaints are “insubstantial” – or, to the contrary, that boiler-plate forms available to anyone on the Utah courts web-site (I assume written by lawyers) run afoul of current prohibitions against ghost-lawyering.

This dissent is subscribed to by Committee Member Maxwell A. Miller and two other Committee Members.

For the full text of Ethics Advisory Opinions go to: http://www.utahbar.org/rules_ops_pols/index_of_opinions.html

1. Rule 1.2(c) provides: "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent."