One of the unique aspects of employment law is that many persons enter into the judicial system representing themselves. An old saying holds that a lawyer who would represent himself has a fool for a client. That is, someone who tries to represent himself will make many mistakes, because that person is too emotionally involved in his/her lawsuit.
But, these pro se (for himself) persons are forced by circumstance into representing himself. Most folks who file a discrimination claim go to the EEOC. In Texas, the only alternative to the EEOC is the Texas Workfroce Commission, Civil Rights Division which has only one office. That office is in Austin. Everyone else ends up at the EEOC.
Typically, the EEOC concludes its "investigation" with no finding or resolution. The charging party, which is how the EEOC describes the complaining party, must go find a lawyer. In my community, as in most communities, there are far more discrimination claims than there are lawyers willing to accept them. Most charging parties start with Personal Injury lawyers who blanket our highways and air waves with their ads. Many, perhaps most cases are turned down by the first few lawyers. and, many lawyers do not refer the charging party to an employment lawyer. The person with a right-to-sue letter in his/her hand often sees a half dozen lawyers with none expressing interest in his/her case.
So, the more enterprising (or determined) charging parties end up at federal court only because the U.S. District Clerk has a check list complaint which the pro se person can file. The plaintiff merely fills in the blanks and then they can file their lawsuit. One recent study found that pro se cases comprised some 20% of all employment lawsuits. Employment lawsuits have by far the higher number of pro se claimants. See Theodore Eisenberg article, "Four Decades of Civil Rights Legislation," p. 19.
A small percentage of these plaintiffs will, however, receive some "unofficial" assistance from an employment lawyer. Some well-meaning lawyers will help the charging party draft his/her first document for the lawsuit, the complaint. The lawyer cannot accept the case, but they still wish to help in some small way. So, they help draft the first legal document.
But, is that ethical? The federal rules of civil procedure require that the lawyers and their parties effect no dishonesty on the court. Is it dishonest to help draft one document and then silently recede away from the courthouse? U.S. District Court in New Jersey addressed this question in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., Inc., No. 04-3009, 2007 WL 766349 (D.N.J. 3/6/2007).
In this case, a widow of a union member filed suit regarding retirement benefits. The plaintiff’s law firm later had to withdraw due to a conflict of interest. The widow met with Richard Shapiro to see if he could then represent her. Mr. Shapiro also had a conflict of interest and could not accept her case. The court allowed the plaintiff additional time to find a lawyer. But, she later said she would proceed with the lawsuit. That is, she said she would proceed pro se.
Seizing its opportunity, the defendant then moved for summary judgment, probably hoping to take advantage of the pro se party. Mr. Shapiro then began to assist Ms. Delso "informally." She filed a response to the motion for summary judgment that was clearly assisted or drafted by a lawyer. More pleadings followed, which the defendant claimed to reflect knowledge of law and litigation. During a phone conference with the court, Ms. Delso admitted with some reluctance that she was receiving assistance from Mr. Shapiro. About this time, the defendant’s lawyer received a letter purportedly from Ms. Delso – but the envelope bore Richard Shapiro’s return address.
Months later, the defendant moved to disqualify Richard Shapiro as Ms. Delso’s lawyer, even though technically he was not part of the lawsuit, officially, sort of, whatever. The defendant argued that "ghost writing" violates the New Jersey ethical rules and conflicts with the lawyer’s duty as an officer of the court.
For purposes of the motion to disqualify on the grounds of conflict of interest, the court did find an attorney client relationship between Ms. Delso and Mr. Shapiro. But, the court found no conflict of interest itself. After reviewing many cases on the issue of ghostwriting and the pertinent portions of the New jersey ethical rules and Rule 11, the court found that Mr. Shapiro’s involvement violated the duty of candor owed to the court. The court acknowledged that Mr. Shapiro told Ms. Delso to be honest with the court. But, that was not enough. His actions violated the spirit of Fed.R.Civ.Pro. Rule 11 and Local Rule 11.1 (apparently similar to Rule 11).
The court mentioned that otherwise, a pro se party is entitled to liberal construction of pleadings. And, liberal construction of pleadings actually drafted or assisted by a trained lawyer presents an unfair advantage to the plaintiff.
The court noted the recent trend of offering "unbundled" legal services, in which a lawyer will represent a client on a discrete portion of a lawsuit. but not the entire lawsuit. But, said, the court, the rules currently contemplate traditional representation. The court said it had to decide based the rules as they currently exist. The court suggested that its ruling might be different if unbundled legal services were expressly allowed. See the March 6, 2007 decision here.