Todd Zywicki posts at the Volokh Conspiracy on the issue of professional licensing as a form of economic protectionism; the comment section quickly turns to the issue of attorney licensing. Eliminating lawyer licensing might be one way to lower the costs of litigation; another way would be to allow “unbundling” of lawyer services — to allow lawyers to provide some services to litigants but not full service representation. (For instance, allowing lawyers to provide research and prepare papers on behalf of litigants, but not to go into court.)
The current legal system is hostile to such an approach, however. On Wednesday, a Federal magistrate judge ruled that a New Jersey lawyer violated ethics rules when he “ghostwrote” pleadings on behalf of a pro-se litigant:
First and foremost, she said, courts generally construe pro se litigants’ pleadings liberally and are more flexible in applying procedural rules. “Simply stated, courts often act as referees charged with ensuring a fair fight,” she said. “This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help.”
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As for the societal benefits of unbundled services, Bongiovanni remarked, “This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC, ghostwriting is antithetical to the public interest.”
Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.
The problem, according to the judge, was that the lawyer’s assistance to the litigant wasn’t disclosed to the court. You may wonder why they didn’t just disclose it; the reason likely was because disclosing it could unravel the whole non-full service scheme, and force the attorney to represent the litigant in court.
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