July 05, 2018

By Sally M. Handmaker Guido

Increasingly, purportedly pro se class action objectors have filed boilerplate objections that are nearly identical to objections filed by serial objector counsel in other class actions.  These filings almost uniformly fail to indicate that the “pro se” objectors are represented or were assisted by counsel.  Then, often the serial objector counsel that ghostwrote the objection will file an appearance and/or request to be admitted pro hac vice later in the objection process.  However, sometimes the serial objector counsel will not appear in order to hide his/her involvement and avoid disciplinary proceedings.

Ethical Issues with Ghostwritten Objections

Failure of an attorney to sign a document s/he prepared is often a violation of the requirements laid out in class action preliminary approval orders, class action notices, Federal Rule of Civil Procedure 11, the Model Rules of Professional Conduct, and applicable local rules.  Federal Rule of Civil Procedure 11 requires that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name” if a party is represented.  The Model Rules of Professional Conduct and most jurisdictions have ethical and local rules that require, at a minimum, that attorneys assisting or drafting filings disclose the fact that a filing was “prepared with the assistance of counsel” to ensure that the court is made aware of a limited attorney-client relationship to comport with, inter alia, the duty of candor owed to the court.  See, e.g., Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001); Chriswell v. Big Score Entertainment LLC, No. 11-cv-00861, 2013 WL 315743, at *4 (N.D. Ill. Jan. 28, 2013) (“the practice of ‘ghost-writing’ briefs for pro se litigants is unethical and will not be permitted . . . because such conduct circumvents the requirements of Federal Rule of Civil Procedure 11, which obligates members of the bar to sign all documents submitted to the court, and to personally represent that there are grounds to support the assertions made in each filing.”); Liguori v. Hansen, No. 2:11-cv-00492-GMN-CWH, 2012 WL 760747, at *5 (D. Nev. Mar. 6, 2012) (citing Ricotta v. Cal., 4 F. Supp. 2d 961, 985-88 (S.D. Cal. 1998)).

Specific to the issue of serial objector counsel, courts consistently consider the fact that “serial objectors” who fail to file an appearance act in “bad faith and also potentially violat[e] . . . local and ethical rules.”  See, e.g., Heekin v. Anthem, No. 05-cv-01908, 2013 WL 752637, at *3 (S.D. Ind. Feb. 27, 2013).  Such a practice is particularly problematic where the ghostwritten briefs are drafted by lawyers who are not licensed to practice in the relevant jurisdiction or have had their licenses suspended/been disbarred, resulting in the unauthorized practice of law.  See, e.g., Gajewski v. Ocwen Loan Servicing LLC, No. 14–cv–9230, 2015 WL 3961611, at *2 n.1 (N.D. Ill. June 25, 2015) (“It is unlikely, to say the least, that these filings were composed by someone without an education in the law.  If assistance was afforded by someone other than a licensed attorney, there would appear to be an issue of the unauthorized practice of law.”).

The full article can be read here.

The 2018 Newsletter can be accessed here.