Halloween seems the appropriate time to discuss the ethics of “ghost writing” legal pleadings. Greg May over at California Blog of Appeal has a post on the issue of ghost writing pleadings for pro se litigants. But what about ghost writing for other attorneys and organizations?
Recently a colleague came to me seeking advice on whether it violates any rules to file a ghost-written amicus brief — that is, a brief actually written by the attorney for the party, but which would be filed in the name of an amicus organization over the signature of some other attorney.
While the California rules do not specifically address the issue, the United States Supreme Court amended their rules some time ago to require amici to disclose whether any of the parties wrote any portion of the amicus brief (Rule 37.6).
I do not think there is any concern with a party discussing legal issues with potential amici, or even recruiting amici to submit briefs to the court on particular legal issues. In the end, however, that brief should reflect the legal and policy views of the amici.
If we want the courts to pay attention to amicus briefs (and that is a different subject altogether), we should take care to ensure that the court has confidence that it is actually receiving third-party input rather than an extended brief of the parties to the action.