New York Lawyer escapes discipline for ghostwriting

By Pat Murphy

The Daily Record Newswire

A New York City immigration lawyer found herself before the 2nd Circuit's attorney discipline committee, facing a plethora of charges for sloppy practice before the court.

Last week, the court decided that the lawyer fully deserved to be sanctioned for everything alleged, with the exception of a charge that she violated a duty of candor by ghostwriting for pro se plaintiffs.

"In light of this court's lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this court," the 2nd Circuit said in In re Liu.

The decision addressed Feng Liu's misguided attempts to handle a heavy load of immigration cases from her New York City law office. Apparently, her caseload had become too heavy back in 2009. The 2nd Circuit referred Liu to the court's Committee on Attorney Admissions and Grievances to investigate whether she was mishandling her clients' cases.

The committee concluded that Liu had indeed engaged in "conduct unbecoming a member of the bar," specifically finding that she had: (1) negligently defaulted on a number of cases in the 2nd Circuit, causing their dismissal; (2) failed to keep her clients apprised of the status of their cases; (3) failed to properly terminate her representation in a number of cases; (4) failed to exhaust administrative remedies for claims later presented to the court; (5) failed to properly supervise less experienced associates; and (6) improperly filed petitions for review knowing that the court was an incorrect venue.

As if that wasn't enough, the committee determined that Liu violated her duty of candor by helping pro se parties draft and file petitions for review in the 2nd Circuit, without disclosing her involvement to the court.

For all that, the committee recommended that Liu be publicly reprimanded, which seems like a slap on the wrist in light of its findings. The 2nd Circuit had no trouble in agreeing that Liu should be disciplined for her sloppy practice and last week upheld the public reprimand regarding those matters.

However, the ghostwriting finding gave the court pause because it had never addressed the issue before.

Attorney ghostwriting is problematic because it affords a plaintiff the benefit of the liberal construction rule for pro se pleadings, while shielding the attorney from accountability for his actions. In addition, it would seem to conflict with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions and papers be signed by the party's attorney.

The 10th Circuit has admonished an attorney for ghostwriting with those concerns in mind, and a number of district courts have disapproved of the practice.

But the 2nd Circuit acknowledged that the trend is to turn a blind eye, noting that the ABA's Standing Committee on Ethics and Professional Responsibility concluded in a 2007 ethics opinion that "[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 of the nature or extent of such assistance."

The ABA committee reasoned that providing undisclosed legal assistance to pro se litigants constituted a form of limited representation permitted under the ABA Model Rules of Professional Conduct.

Just last year, the New York County Lawyers Association Committee on Professional Ethics concluded that that a lawyer may ethically play a limited role in representing a client and ghostwrite documents for court proceedings.

In last week's per curiam opinion, the 2nd Circuit followed the trend, deciding that Liu's ghostwriting did not warrant discipline.

The court noted that "there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the court or that she otherwise acted in bad faith. The petitions for review now at issue were fairly simple and unlikely to have caused any confusion or prejudice."

The 2nd Circuit panel added that "there is no indication that Liu sought, or was aware that she might obtain, any unfair advantage through her ghostwriting. Finally, Liu's motive in preparing the petitions -- to preserve the petitioners' right of review by satisfying the thirty-day jurisdictional deadline -- demonstrated concern for her clients rather than a desire to mislead this court or opposing parties."

Published: Tue, Nov 29, 2011

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