Ghostwriting: The key that will open courtroom doors?

March 1st, 2014

By Izette Knoetze

Most people cannot afford comprehensive legal assistance. Those in need of legal assistance are grateful for any assistance they can get and are willing to pay what they can afford. The demand, particularly for civil legal services, is exceedingly high in South Africa. More and more people are seeking advice from a lawyer in these instances but only to a limited extent (ie, providing advice or the drafting of pleadings). In the United States (US), the practice of ghostwriting to provide anonymous but professionally drafted petitions to appellate courts has not only been limited to civil cases. Legal representatives across the world are currently delivering various unbundled legal services, for example, limited telephone advice or limited representation during mediation.

Ghostwriting and unbundling legal services

The practice of ghostwriting simply entails a legal representative who agrees to prepare a document for his or her client at an agreed cost. The concept of ghostwriting a legal document (ie, authoring a legal document for some one who is presumed to be the actual author), has been a perplexing problem for lawyers, clients, courts and even Bar associations in the US (see J Vincent Aprile II ‘Ghostwriter: A new legal superhero?’ (2009) vol 26 no 2 GPSolo at p 26).

Unbundled legal services are often referred to as ‘a la carte’ legal services or ‘discrete task representation’ and involve a legal representative providing a client with specific and limited services rather than the more traditional method of providing the client with full representation in a legal matter.

The scope of unbundled legal services is considerably broader and embraces many other legal services besides pleading preparation. Limited representation involves five types of lawyering, namely –

  • giving advice;
  • filling out legal forms;
  • drafting documents for court filings;
  • researching the law; and
  • representing the client during trial.

(Peter R Bornstein ‘Ghostwriting and the Invisible Lawyer’ Summer 2013, vol 39, issue 3 Litigation at p 37).

So, what is really new about unbundling? Legal representatives have long provided client consultations, second opinions and answered questions over the telephone. Limited representation has traditionally existed – an example is the tradition of unbundling in the litigation context where insurance company lawyers tell the company to defend the insured on some claims but not others. Paralegals also often engage in unbundling legal services, where, for example, they are requested not to engage in a full-service takeover of the matter, but simply asked to fill out legal forms.

Both these practices allow middle and low income litigants access to the legal system without engaging the services of a full service lawyer.

Client-lawyer relationship

The client-lawyer relationship is a two-way collaborative process rather than the lawyer being in charge of strategy and tactics. Clients communicate directly with the other party with the lawyer coaching on the sidelines. In this relationship, the lawyers are valued as resources rather than directing client action (Forrest S Mosten ‘Unbundling: Current Developments and Future Trends’ Family Court Review January (2002), vol 40, no 1 at p 16).


The practices of unbundling and ghostwriting have raised ethical questions regarding the extent to which legal services and advice may be given to litigants without legal representatives being held accountable for the services or advice. These ethical concerns were highlighted in US case law.  A few other concerns are discussed below.

Pleadings: In May 2007 the American Bar Association issued ‘Formal Opinion 07-446, Undisclosed Legal Assistance to Pro Se Litigants’ (, accessed 3-2-2014), which addressed the ethical issues surrounding legal ghostwriting. The opinion equates legal ghostwriting or the ghost reviewing of legal documents as a form of the unbundling of legal services that allows a lawyer to perform specified tasks for a client without handling the entire matter. The ABA Model Rules explicitly authorise both ghostwriting and unbundling.

The following concerns were eminent in US case law. In the case of Wesley v Don Stein Buick, Inc, 987 F. Supp. 884 (D.Kan. 1997), the court stated: ‘Both the court and the parties, moreover, have a legitimate concern that an attorney who substantially participates in a case at least be identified and recognise the possibility that he or she may be required to enter appearance as counsel of record and thereby accept accountability for his or her participation, pursuant to Rule 11 and the rules of professional conduct applicable to attorneys.’

As the legal representative does not sign his or her name on the pleadings when ghostwriting, the legal representative who wrote the pleadings cannot be identified and thus cannot be held accountable for any misrepresentation.

Limited representation: It is also contended that a truncated level of work can violate the legal representative’s duty to provide competent legal services that advance the client’s interests.

Advantages of ghostwriting and unbundling legal services

The unbundling of legal services helps clients to control the cost of litigation as the client can select which services his or her legal representative will actually provide, thus providing greater access to legal assistance for middle income groups.

A further advantage is that an attorney can offer unbundled services to barely literate individuals in criminal law matters. For example, a ghostwritten petition is far better than one that is prepared pro se.

Another benefit is that the unbundling of legal services allows a legal practitioner to provide limited assistance to individuals when the legal representative may not have the time to undertake full representation.


As the concept of unbundling legal services expands, there will be ethical and practical considerations for legal representatives and the courts. I submit that for most people ghostwriting and unbundling are what access to justice is all about, namely, the ability to get legal advice at an affordable price. The main objective of ghostwriting should be to assist litigants and to better prepare them for court procedures so that their cases can be heard more efficiently. Unbundling and ghostwriting are undoubtedly the way of the future.

Izette Knoetze LLD (UFS) is an admitted attorney and legal researcher at Legal Aid South Africa at its national office in Johannesburg.

This article was first published in De Rebus in 2014 (March) DR 50.