fall 2018 brown bag cle series - marquette university law
TRANSCRIPT
Hon. Richard J. SankovitzMilwaukee County Circuit Court
Fall 2018 Brown Bag CLE Series
MVLC LAW Brown Bag CLE
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Hon. Richard J. SankovitzMilwaukee County Circuit Court
PMSA:Making the MSA more palatable by
adding Pumpkin Spice
MVLC LAW Brown Bag CLE
Hon. Richard J. SankovitzMilwaukee County Circuit Court
Ghostwriting in Clinics and Self-Help Centers:Not Dead Yet?
MVLC LAW Brown Bag CLE
Hon. Richard J. SankovitzMilwaukee County Circuit Court
MVLC LAW Brown Bag CLE
Hon. Richard J. SankovitzMilwaukee County Circuit Court
Ghostwriting in Clinics and Self-Help Centers:Not Dead Yet?
MVLC LAW Brown Bag CLE
Agenda
Agenda
§ What is “ghostwriting”?
Agenda
§ What is “ghostwriting”?§ Why permit ghostwriting?
Agenda
§ What is “ghostwriting”?§ Why permit ghostwriting?§ Ghostwriting approved 2014
Agenda
§ What is “ghostwriting”?§ Why permit ghostwriting?§ Ghostwriting approved 2014§ Attempt to limit ghostwriting 2018
Agenda
§ What is “ghostwriting”?§ Why permit ghostwriting?§ Ghostwriting approved 2014§ Attempt to limit ghostwriting 2018§ Options for dealing with limitations on
ghostwriting
Agenda
§ What is “ghostwriting”?§ Why permit ghostwriting?§ Ghostwriting approved 2014§ Attempt to limit ghostwriting 2018§ Options for dealing with limitations on
ghostwriting§ Prospect for change
What is “ghostwriting”?
What is “ghostwriting”?
§ When a lawyer assists a self-represented litigant (“SRL”) in drafting documents
What is “ghostwriting”?
§ When a lawyer assists a self-represented litigant (“SRL”) in drafting documents without disclosing the lawyer’s role to the reader
Why permit ghostwriting?
Why permit ghostwriting?
§ Expands access to justice
Why permit ghostwriting?
§ Expands access to justice§ Makes it easier to recruit volunteer
lawyersl Brief legal assistance
• Especially filling out our forms
Why permit ghostwriting?
§ Expands access to justice§ Makes it easier to recruit volunteer
lawyersl Brief legal assistance
• Especially filling out our forms
§ Makes legal services more affordablel Limited scope representation
Why permit ghostwriting?
§ Requiring disclosure can be a disincentive to volunteer attorneys
Why permit ghostwriting?
§ Requiring disclosure can be a disincentive to volunteer attorneysl Disclosure conflict check?
Why permit ghostwriting?
§ Requiring disclosure can be a disincentive to volunteer attorneysl Disclosure conflict check?
• Prevents immediate service
Why permit ghostwriting?
§ Requiring disclosure can be a disincentive to volunteer attorneysl Disclosure conflict check?
• Prevents immediate servicel “Business” conflict
• Risk of appearing disloyal to an unknown adversary who turns out to be a client
Why permit ghostwriting?
§ Requiring disclosure can be a disincentive to volunteer attorneysl Disclosure conflict check?
• Prevents immediate servicel “Business” conflict
• Risk of appearing disloyal to an unknown adversary who turns out to be a client
l Some fear that disclosure will lead to a compelled general appearance
Why permit ghostwriting?
§ Disclosing merely that a lawyer has assisted addresses the main concerns about ghostwriting
Why permit ghostwriting?
§ Disclosing merely that a lawyer has assisted addresses the main concerns about ghostwritingl Misrepresentation? l Attorney duty of candor?l Unfairness to opposing party?
Ghostwriting approved 2014
Ghostwriting approved 2014
§ Court unanimously approved Rules Petition 13-10
Ghostwriting approved 2014
§ Court unanimously approved Rules Petition 13-10l SCR 20:1.2(cm): Ethical to ghostwrite as
long as document discloses lawyer assistedl WIS. STAT. § 802.05(2m): “[L]awyer may . . .
assist in drafting . . . [A]ttorney is not required to sign . . . [D]ocument must contain a statement . . . that “This document was prepared with the assistance of a lawyer”
Attempt to limit ghostwriting 2018
Attempt to limit ghostwriting 2018§ 2017 WI Act 317, effective April 18, 2018
Attempt to limit ghostwriting 2018§ 2017 WI Act 317, effective April 18, 2018§ Adds the following to § 802.05(2m):
l [L]awyer may . . . assist in drafting . . . [A]ttorney is not required to sign . . . [D]ocument must contain a statement . . . that “This document was prepared with the assistance of a lawyer” followed by the name of the attorney and the attorney’s state bar number.
Two options
Two options
§ More cautious approach§ More intrepid approach
Two options
§ More cautious approach: disclose name and bar number
Two options
§ More cautious approach: disclose name and bar numberl State Bar Ethics Counsel recommendsl Recommendation based on SCR 20:8.4(f):l it is misconduct for a lawyer to: “violate a
statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers” (emphasis added by counsel)
Two options
§ More intrepid approach:
Two options
§ More intrepid approach: § Simple disclosure approved in the ethics
rules, plus cite SCR 20:1.2(cm): l “This document was prepared with the
assistance of a lawyer. No further disclosure is required. See SCR 20:1.2(cm)”
Two options
§ More intrepid approach: § Argument
l Leg changed § 802.05(2m), but did not change ethics rules, in particular, SCR 20:1.2(cm), which explicitly permits ghostwriting
l SCR 20:8.4(f) is not conclusive; it is a general rule; when general and specific laws conflict, specific should control
l No evidence S. Ct. or Leg intended violation to be misconduct
Prospects for change
Prospects for change
Ghostwriting in Clinics and Self-Help Centers:
Not Dead Yet
Thank you!