Following up on a previous post about unbundling, there's this story out of New Jersey. A court there found that a lawyer had violated the rules of professional conduct by ghostwriting a brief on behalf of a pro se litigant. The court reasoned that courts sometimes give leeway to pro se litigants, leeway that would be unwarranted if the litigant had received a lawyer's assistance. The court suggested that the lawyer's failure to reveal his role in this case constituted a violation of Rule 3.3 in that it reflected a lack of candor to the tribunal.
In my view, unbundling is an important method for providing legal assistance to people who cannot afford to hire an attorney to handle an entire legal matter. That said, I do sympathize with the court's point that the judge might give breaks to a litigant, thinking that the litigant is pro se when, in fact, the litigant is receiving some assistance from a lawyer. That's not an argument against unbundling, but rather an argument that a lawyer who is helping someone in litigation should reveal the extent of that assistance to the court.
The court in New Jersey went one step beyond notification, however, and required the ghostwriting lawyer to make an appearance in the case or stop working on the matter. I think a formal appearance isn't necessary to achieve the goal of transparency and would undermine some of the benefits of unbundling. In particular, by making a formal appearance, the lawyer would probably have to take on more obligations in the matter, which would increase costs and undermine the goal of providing more affordable legal assistance. A better solution, in my opinion, would be to require the lawyer to notify the court about the particular nature of the limited representation but not require a formal appearance.
In any event, given the increasing use of unbundling, issues of this sort are likely to arise with more frequency in the next few years. Stay tuned.
Update: For additional commentary and links regarding this case, check out the Legal Profession Blog.