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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC                                                                                  SUPERIOR COURT
(FILED:  January 17, 2013)
DISCOVER BANK                                                                                   :
:
v.                                                                                              :                                                               C.A. No. PC-11-0449
:
DIANA L. OBRIEN-AUTY                                                                            :
DECISION
TAFT-CARTER, J.   In this decision, the Court addresses whether an attorney who
drafts a pleading for a pro se litigant without disclosing his or her identity or entering an
appearance  violates  Rule                                                                      11  of  the  Rhode  Island  Superior  Court  Rules  of  Civil
Procedure.1    This practice is known as  “ghostwriting.”    Ghostwriting in the present
context  occurs  when  pleadings  and  other  court  documents  are  drafted  by licensed
attorneys  for paying clients  who then use those documents in  litigation, ostensibly
representing themselves pro se.   For the reasons stated in this Decision, the Court finds
that ghostwriting is a violation of Rule 11 of the Rhode Island Superior Court Rules of
Civil Procedure.   Jurisdiction is based on Super. R. Civ. P. 11 and this Court‟s inherent
authority to protect the integrity of its processes.
I
Facts and Travel
This case arises from Plaintiff Discover Bank‟s (“Discover Bank”) attempts to
collect on a debt allegedly owed by Defendant Diana O‟Brien Auty (the “Defendant”).
1  This  decision is  issued in  tandem  with  HSBC  Bank Nevada, N.A.  v. Robert  L.
Cournoyer, C.A. No. PC-2011-0194, (R.I. Super. Ct. filed Jan. 17, 2013).




Discover Bank demands a judgment against the Defendant in the amount of $11,545.81,
plus interest and costs.                                                                   (Complaint at 1.)   The claim resulted from “charges and/or cash
advances incurred on Defendant‟s credit account.”   Id.   The Defendant filed her timely
Answer to Discover Bank‟s Complaint.   In her Answer, the Defendant denied Discover
Bank‟s allegations  in  part.                                                              (Answer at  1.)    The Defendant  admitted that she had
outstanding debt with Discover Bank, but claimed to lack sufficient information to admit
or deny the specific amount claimed by Discover Bank.   Id.   The Answer indicated that
the Defendant was representing herself pro se.2   Id. at 2.   The Answer also contained
language in small font appearing two to three inches below the Defendant‟s signature on
page two, stating the following:
“This document was prepared by, or with the assistance of,
an attorney licensed in RI and employed by Consumer Law
Associates, LLC  / Consumer Law Associates, LLP  (CA,
MI) / Consumer Law Associates, PLLC (NC) - 972-239-
4804.”   Id.
On April 20, 2011, Discover Bank moved for summary judgment pursuant to Rule 56.
The Plaintiff filed a memorandum of law and documentation concerning the Defendant‟s
alleged debt.   The documentation included a credit card statement showing a previous
balance  of                                                                                $11,545.81,  an  affidavit  from  a                                                 “Legal  Placement  Account  Manager”
employed by Discover Bank‟s servicing agent, and a photocopy of a Discover Bank
“Cardmember Agreement.”   The affidavit attested to the accuracy of the credit card
statement and the applicability of the Cardmember Agreement to the Defendant.  On May
3,                                                                                         2011,  the Defendant  filed a one-page Objection to  Discover  Bank‟s motion  for
summary judgment, essentially claiming that Discover Bank had not met its burden of
2 The term “pro se” is defined as:   “One who represents oneself in a court proceeding
without the assistance of a lawyer.”  Black‟s Law Dictionary (9th ed. 2009).
2




proof and that genuine issues of material fact remained unresolved.                              (Def.‟s Objection at
1.)                                                                                              As with the Defendant‟s Answer, her Objection clearly indicated that she was
representing herself pro se.   Id.   Along the bottom of the Objection, the same language
quoted above referring to  “Consumer Law Associates, LLC” appeared in small font
below the Defendant‟s signature.  Id.
The matter came up for a hearing on June 3, 2011, on Discover Bank‟s motion for
summary judgment.   At the June 3, 2011 hearing, the Defendant contested the amount of
money owed, indicating that the last statement she had received from Discover Bank
totaled roughly $9,000.   (June 3 Tr. at 1-2.)  The Defendant also stated that for a period of
roughly one year prior to the June  3,  2011 hearing, she had been making monthly
payments of $600 to a debt consolidation company called “Consumer Law Associates,”
which she had engaged to consolidate her credit cards and pay off her debt.   Id. at 4-5.
The Defendant testified that her monthly fee to Consumer Law Associates had just
recently been reduced to $465 because she had “no income.”   Id. at 5.   The Defendant
stated that Consumer Law Associates had promised to consolidate her credit cards and
pay off her debts for consideration amounting to 13-30% of her total debt.   Id. at 6.   She
also stated that Consumer Law Associates was required to provide her with a Rhode
Island licensed attorney as part of their debt consolidation arrangement.   Id. at 7. She
stated that the name of her Rhode Island licensed attorney was Michael Swain (“Swain”).
Id. at 3.   The Defendant stated her belief that Swain was her attorney and that Swain
would “represent[] [her] in the cases that come up in Rhode Island and [that] he‟d supply
[her] with answers.”  Id. at 7.  The Defendant acknowledged that she had not prepared the
Answer or Objection that she submitted to the Court; rather, the documents had been
3




prepared by Attorney Swain and forwarded to her with instructions about how to proceed
in litigation.    Id. at                                                                      3,                   7-8.    Before adjourning the June  3,  2011 hearing, the Court
continued Discover Bank‟s summary judgment motion to June  6,  2011 and made it
known that Attorney Swain‟s presence would be required.   Id. at 9-10.   The Defendant
was also required to appear to meet her attorney, Attorney Swain, on June 6, 2011.  Id.
Attorney Swain arrived at the Superior Court as requested on June 6, 2011.   He
entered his appearance for the Defendant at the direction of the Court.                       (June 6 Tr. at 5.)
Attorney Swain admitted that he had prepared the Defendant‟s Answer and that he had
prepared and filed the Defendant‟s Objection to Discover Bank‟s motion for summary
judgment, heard in Atorney Swain‟s absence on June 6, 2011.   Id. at 1, 3.   He also
admitted that he represents the Defendant, but claimed that the scope of his representation
was limited consistent with Rule  1.2 of the Rhode Island Supreme Court Rules of
Professional Conduct and the terms of his retainer agreement with the Defendant.   Id.
Attorney Swain also admitted that he was paid for his role as an advocate in this case by
“Persels and Associates,” a hybrid Maryland-based law firm that offers “debt settlement
services as well  [as] unbundled legal help.”    Id. at  2.    Attorney Swain stated that
“Consumer Law Associates” also “is a part of the Persels Group.”   Id.   Attorney Swain
did not have an address for Persels and Associates available in court, and he was able to
provide only a phone number for the firm‟s “managing partner.”   Id. at 2-3.   Although
Attorney Swain acknowledges an attorney-client relationship with the Defendant and that
he was responsible for the drafting and submission of the Defendant‟s litigation papers in
this case, Swain‟s name appeared nowhere on any such document, and his specific
4




involvement in the case could not have been inferred from those documents in any
respect.  See id. at 1, 3-4.
At the conclusion of the June 6, 2011 hearing, the hearing justice issued an Order
finding that Attorney Swain‟s ghostwriting was unethical, lacking in candor to the Court,
and a sanctionable violation of Rule 11 of the Rhode Island Superior Court Rules of Civil
Procedure.                                                                                     (June 6 Order at 1.)   The hearing justice then sanctioned Attorney Swain in
the amount of $750, and ordered that any and all attorney fees he had received from the
Defendant were to be refunded to the Defendant‟s account.   Id. at 1-2.  On June 22, 2011,
Attorney Swain filed a notice of appeal for review of the June 6, 2011 Order by the
Rhode Island Supreme Court.    On June  13,  2012, the Rhode Island Supreme Court
vacated the June 6, 2011 Order imposing sanctions and remanded to this Court to afford
Attorney Swain with adequate notice and an opportunity to be heard on the imposition of
sanctions against him.  See Discover Bank v. Diana O‟Brien Auty, No. 2011-215-Appeal,
(R.I. filed June 13, 2012).   In its Order, the Supreme Court directed this Court to address
the applicability of Rule  11 to the circumstances of this case and to make findings
relative to whether or not Attorney Swain violated Rule 11.   Id.   Thereafter, this Court
issued a show-cause notice to Attorney Swain, scheduling a hearing for November 2,
2012.   Specifically, this Court requested that Attorney Swain address four issues at the
November 2, 2012 hearing:
1.  Whether                                                                                    [his]  practice  of  ghostwriting,  which  is  the
drafting of pleadings and other court documents on behalf of
the  Defendant,  who  is  a  self-represented  litigant  in  this
matter, is a violation of Rule 11 of the Rhode Island Rules
of Civil Procedure;
2. Whether [his] representation of the Defendant for the sole
purpose  of  preparation  of  pleadings  and                                                   [his]  failure  to
5




disclose such representation of the Defendant to the Court is
a violation of Rule 11 of the Rhode Island Rules of Civil
Procedure;
3. Whether [his] failure to sign a pleading, written motion or
other papers filed in this case is a violation of Rule 11 of the
Rhode Island Rules of Civil Procedure; and
4. Whether [he] violated Rule 11 of the Rhode Island Rules
of Civil Procedure when  [he] drafted documents for the
Defendant in this action or for [his] client, knowing that they
will be eventually filed with this Court.
On October 31, 2012, a pre-hearing memorandum of law was filed on Attorney Swain‟s
behalf that responded to these issues.  In the pre-hearing memorandum, Swain claims that
following the June 6, 2011 hearing, he ceased providing “ghostwriting” legal services to
pro se litigants.                                                                              (Swain Pre-Hearing Mem. at 11.)
II
Arguments
Attorney Swain argues on several fronts that he did not violate Rule 11 of the
Rules of Civil Procedure or engage in sanctionable conduct when he prepared pleadings
on behalf of his client without disclosing his identity to the Court.  As his case was heard
concurrently with the show-cause notice issued in HSBC Bank v. Cournoyer, C.A. No.
PC-2011-0194,  (R.I. Super. Ct. filed Aug.  10,  2012), Attorney Swain endorses and
incorporates by reference the relevant arguments made on behalf of Attorney Taylor
Humphrey.  Attorney Swain also complements those arguments with points significant to
his own circumstances.   First, Attorney Swain argues that Rhode Island Supreme Court
Rule of Professional Conduct 1.2(c), which allows an attorney to limit the scope of his
representation “if the limitation is reasonable under the circumstances and the client gives
informed consent,” permitted his practice of preparing pleadings without disclosing his
6




identity in this case.                                                                          (Swain Pre-Hearing Mem. at 1-2.)   Attorney Swain argues that no
Rhode Island court, tribunal, or bar organization had ever addressed the propriety of
ghostwriting at the time he engaged in it, and therefore that he should not be sanctioned
for preparing pleadings on behalf of an ostensibly pro se litigant without disclosing his
identity.   Id. at 2.   He stresses that the American Bar Association (“ABA”) considers
ghostwriting ethically permissible even without disclosure to the court, contending that
undisclosed preparation of pleadings for pro se litigants is a generally supported practice
nationwide.    Id.    Because the litigation papers he drafted for his client in this case
contained a limited disclosure statement, Swain contends that he exceeded any possible
disclosure expectations.   Id. at 4-6.   Moreover, Attorney Swain contends that leading
journals of legal ethics generally support the practice of ghostwriting because it makes
legal services affordable for  a large section of the public that would otherwise be
disadvantaged in its access to the courts.  Id. at 4-5.  Attorney Swain also argues that Rule
11 by its very terms does not apply to a non-signing, drafting attorney, so as to make his
practice of preparing pleadings without disclosing his identity a sanctionable offense.   Id.
at 9-11.   Attorney Swain buttresses this argument by contending that no party was misled
by his ghostwriting practices in this case, that there was no danger of granting the pro se
defendant unwarranted leeway, and that there was little to suggest that his practice of
ghostwriting had placed a burden on the Court.   Id. at 6.   Furthermore, argues Attorney
Swain, the prospect that Rule 11 does not apply to him as a non-signatory, drafting
counsel does not mean that sanctions would be foreclosed in this case because the
Defendant herself signed the litigation papers.   Id. at 10-11.   Moreover, Swain contends
that other avenues for ethical reprimand exist via the Office of Disciplinary Counsel, in
7




spite of Rule 11, for any conduct he engages in as an attorney.   Id.  Finally, Swain argues
that  applying  sanctions  to  his  conduct  in  this  case  amounts  to  a  constitutionally
impermissible retroactive punishment, noting that other courts have been unwilling to
impose sanctions on offending attorneys when finding as a matter of first impression that
ghostwriting violates Rule 11.  Id. at 7-9.
III
Ghostwriting in Context
Attorney Swain cites to articles and treatises to support his view that ghostwriting
is acceptable.   The Court is mindful of the conclusions of those authors with respect to
pro bono and prisoner representation cases.  However, the present context of ghostwriting
is vastly different from the context which he cites as authority to allow ghostwriting.
Attorney Swain did not ghostwrite on behalf of a pro se prisoner and he was not working
on a pro bono basis.    Neither was he  “lending some assistance to  friends, family
members, [or] others with whom . . . [he] . . . want[ed] to share specialized knowledge.”
See Ricotta v. State of Cal., 4 F. Supp. 2d 961, 987 (S.D. Cal. 1998).   The context in
which Attorney Swain prepared a pleading to be submitted to the Court without his
signature was the debt settlement industry, wherein “[d]ebt settlement services providers
purport to obtain lump-sum settlements of unsecured debts for consumers in exchange for
fees.”    See Civil Court and Consumer Affairs Committees, N.Y.C. Bar Association,
Profiteering From Financial Distress:   An Examination of the Debt Settlement Industry 1
(May  2012)  [hereinafter NYC Bar Association White Paper].3    The debt settlement
3                                                                                               The     NYC     Bar     Association     White     Paper     is   available   at:
http://www2.nycbar.org/pdf/report/uploads/DebtSettlementWhitePaperCivilCtConsumer
AffairsReportFINAL5.11.12.pdf (last visited Jan. 9, 2013).
8




industry manages billions of dollars in consumer debt on a for-profit basis.   See Ryan
McClune  Donovan,  Note,  The  Problem  with  the  Solution:  Why  West  Virginians
Shouldn‟t “Settle” for the Uniform Debt Management Services Act, 113 W. Va. L. Rev.
209, 213 n.7 (2010) (stating that two hundred member companies of a debt settlement
trade association “served more than 154,000 active consumer clients and managed more
than $4.9 billion in debt” as of mid-2009).  The NYC Bar Association White Paper found
“conclusively that substantial numbers of [those] involved in debt settlement experienced
net financial harm” from enrollment with companies in the debt settlement industry. See
NYC   Bar  Association  White  Paper  at                                                      2   (citing   “increased  debt,   damaged
creditworthiness, and stepped up collection efforts on the part of creditors”).   The White
Paper also makes an express recommendation that the Rules of Professional Conduct
“should be enforced against attorneys involved in debt settlement operations who purport
to be acting as attorneys.”   NYC Bar Association White Paper at 3.   Additionally, in
2010,  the  United  States  Government  Accountability  Office  concluded  a  lengthy
investigation of the debt settlement industry that “uncovered clear and abundant evidence
of fraudulent, deceptive, and abusive practices.”   Donovan, 113 W. Va. L. Rev. 209, at
229-30 (2010) (citing United States Government Accountability Office, Debt Settlement:
Fraudulent, Abusive, and Deceptive Practices Pose Risk to Consumers (2010)).4
Although ghostwriting has become more prevalent over the last decade, see, e.g.,
Jeffrey P. Justman, Capturing the Ghost:   Expanding Federal Rule of Civil Procedure 11
to Solve Procedural Concerns With Ghostwriting, 92 Minn. L. Rev. 1246, 1287 (2008),
4 The GAO‟s investigation is available at:   http://www.gao.gov/assets/130/124498.pdf
(last visited Jan. 9, 2013).
9




the propriety of this practice in Rhode Island had not been addressed prior to Attorney
Swain‟s actions in this case.5   There have been relatively few reported cases dealing with
ghostwriting for pro se litigants at the state or federal level, and while there is some
reason to believe that the practice has gained increasing acceptance, the nationwide
discussion is still in its early stages.   See Delso v. Trs. for the Ret. Plan for the Hourly
Emps. of Merck & Co., Inc., No. 04-3009 (AET), 2007 WL 766349, at *12 (D. N.J Mar.
6, 2007).
Ghostwriting is typically viewed as a subset of “unbundled legal services.”  Under
the “unbundled legal services” model, “the lawyer and client agree that the lawyer will
provide some, but not all, of the work involved in traditional full service representation.”
Hon. Fern Fisher-Brandveen & Rochelle Klempner, Unbundled Legal Services:   Untying
the Bundle in New York State, 29 Fordham Urb. L.J. 1107, 1108 (2002).   Proponents of
the unbundled legal services model argue that such à la carte representation “increases
access  to  justice,  promotes  efficiency  in  the  courtroom,  and  furthers  business
opportunities for attorneys.”    Id. at                                                         1111.    Detractors, on the other hand, focus on
malpractice and ethical concerns associated with the model.  Id.
Rhode  Island‟s  Rules  of  Professional  Conduct  do  permit  limited  scope
representation under appropriate circumstances.   See Sup. Ct. R. Prof. Conduct Rule
1.2(c).   Rule 1.2(c) states that “[a] lawyer may limit the scope of representation if the
5 In FIA Card v. Pichette, No. PC 2011-2911, 2012 WL 3113460 (R.I. Super. Ct. July 26,
2012), Justice Van Couyghen found that ghostwriting is unethical and a violation of Rule
11.   The actions of Attorney Swain in the present case preceded the decision in Pichette,
so Swain argues that he had no way of realizing that his ghostwriting activities in this
case could violate Rule  11.    For the reasons discussed in this Decision, the Court
disagrees.
10




limitation is reasonable under the circumstances and the client gives informed consent.”6
Additionally, Rule  6.5 grants specific ethical leeway to  “[a] lawyer who, under the
auspices of a program sponsored by a nonprofit organization or court, provides short-
term limited legal services to a client without expectation by either the lawyer or the
client that the lawyer will provide continuing representation in the matter.”   Sup. Ct. R.
Prof. Conduct Rule 6.5 (making Rules 1.7, 1.9(a) and 1.10 of the Rules of Professional
Conduct applicable to such an attorney only under certain circumstances).
The issue for this Court is not to determine broadly the ethical implications of
“unbundled legal services” as they relate to the practice of law in Rhode Island.   Instead,
the Court must narrowly construe whether an attorney, here Attorney Swain, is required
to disclose his or her identity to the Court when preparing pleadings on behalf of a client
who submits them as pro se in the context of the litigation.                                   “[C]ourts are duty bound to
address  ghostwriting  within  the  rubric  of  existing  ethics  rules,  court  rules  and
professional duties and responsibilities that were drafted and adopted by legislative or
governing bodies.”   Delso, 2007 WL 766349, at *12.   Moreover, the overall societal
benefits  of  ghostwriting  are  not  within  this  Court‟s  purview;  rather,  this  Court
specifically limits its decision to the propriety of ghostwriting as it arose in this case.
Attorney Swain‟s affiliation with “Persels and Associates” or “Consumer Law
Associates” may provide cause for concern with respect to the societal implications;
however, in the context of debt settlement litigation, Attorney Swain‟s ghostwriting
6 The commentary to Rule 1.2(c) explains:                                                      “The scope of services to be provided by a
lawyer may be limited by agreement with the client or by the terms under which the
lawyer‟s services are made available to the client . . .                                       .   A limited representation may be
appropriate because the client has limited objectives for the representation.   In addition,
the terms upon which representation is undertaken may exclude specific means that might
otherwise be used to accomplish the client‟s objectives.”
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places an especially unfavorable burden on the Court, given that pro se litigants are held
to less stringent standards than those represented by lawyers.   See Haines v. Kerner, 404
U.S. 519, 520 (1972).   The Court is particularly troubled by the prospect of determining
application  of  the  pro  se  leniency  doctrine  when  the  ghostwriting  attorney  is
anonymously affiliated with an industry that has a very poor track record in terms of the
benefits it provides to consumers.   See Donovan, 113 W. Va. L. Rev. 209, at 227 (2010)
(discussing the “disturbingly low success rate” of debt settlement programs).   The Better
Business Bureau gives Consumer Law Associates, LLC a rating of “F”7.   Additionally,
the success rate for clients of Persels and Associates has been described by one court as
“dubious at best.”   In re Kinderknecht, 470 B.R. 149, 159 (Bankr. D. Kan. 2012).   In
performing the Rule 11 analysis below, the Court is thus mindful of the context in which
Attorney Swain‟s ghostwriting arose.
IV
An Attorney-Client Relationship Existed
At the outset, this Court finds that an attorney-client relationship exists between
the Defendant and Attorney Swain as  a matter of law and fact.    See DiLuglio v.
Providence Auto Body, Inc.,  755 A.2d  757,  766  (R.I.  2000)  (“[T]he existence of an
attorney-client relationship is a question of fact” and  “the creation of a professional
relationship between attorneys and their clients is governed by contract law.”)   Attorney
Swain acknowledges that a lawyer-client relationship exists.                                 (June 6 Tr. at 1, 3; Swain
Pre-Hearing Memo at 1-2.)   Furthermore, it was the Defendant‟s belief that Attorney
7  See  Consumer  Law  Associates,  LLC  Business  Review,  Better  Business  Bureau,
http://www.bbb.org/dallas/business-reviews/attorneys-and-lawyers/consumer-law-
associates-in-frisco-tx-90119672 (last visited Jan. 9, 2013).
12




Swain was her lawyer; moreover, that he would “represent[] [her] in cases that come up
in Rhode Island and [that] he‟d supply [her] with answers.”                                         (June 3 Tr. at 7.)   The
Defendant also has stated that she paid a fee so that, in part, Attorney Swain could
instruct her how to proceed in the litigation.   Id. at 7-8.  Finally, the parties entered into a
retainer agreement which involved legal services.                                                   (June 6 Tr. at 3; Swain Pre-Hearing
Mem. at 3-4.)   Moreover, Attorney Swain acknowledged drafting all of the Defendant‟s
litigation paperwork in this case.                                                                  (June 6 Tr. at 3.)   It is clear to this Court that Attorney
Swain entered into an attorney-client relationship with the Defendant.
V
Rule 11 Analysis
The court begins its analysis of the applicability of Rule 11 to Attorney Swain‟s
practice of failing to disclose his identity when preparing pleadings to be submitted to
this Court.   This Court is mindful that in Rhode Island, “trial courts possess the inherent
authority to protect their integrity by sanctioning any fraudulent conduct by litigants that
is directed toward the court itself or its processes, as informed by the procedures and
sanctions available to the court and to the parties under Rules  11 and  37.”    Lett v.
Providence Journal Co., 798 A.2d 355, 365 (R.I. 2002).  Therefore, this Court has latitude
to impose Rule 11 sanctions pursuant to its inherent authority when the integrity of the
court or its processes is put at risk by the deceitful conduct of the litigants before it.          “[A]
court‟s authority to disqualify an attorney or craft appropriate relief to punish or deter
attorney misconduct derives from the court‟s equitable powers.”   UMG Recordings, Inc.
v. MySpace, Inc., 526 F. Supp. 2d 1046, 1062 (C.D. Cal. 2007) (quoting Geoffrey C.
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Hazard, Jr. & W. William Hodes, The Law of Lawyering:   A Handbook on the Model
Rules of Professional Conduct § 4.7, at 4-22 (Aspen, 3d ed. 2007)).
Moreover, Attorney Swain argues that Rule  11 is not unrelated to the Rhode
Island  Supreme  Court  Rules  of  Professional  Conduct                                        (the      “RPC”).    This  Court‟s
authority to make rulings on questions that implicate the Rules of Professional Conduct is
uncertain.   See Sup. Ct. Rules, Art. III (Disciplinary Procedure for Attorneys), Rules 2
and 6 (channeling attorneys‟ violations of the RPC through Disciplinary Counsel and the
Disciplinary Board).   However, this Court clearly has the authority to rule on matters
pertaining to the Rhode Island Superior Court Rules of Civil Procedure.   For this reason,
Attorney Swain‟s argument, that the practice of ghostwriting which is permitted by the
Rules  of  Professional  Conduct  cannot  then  be  sanctionable  under  Rule                   11,  is
fundamentally unsound and entirely misplaced.   Whether a practice is permitted in the
abstract by the RPC, enforcement of which may fall outside the scope of this Court‟s
authority, has no bearing on whether that practice as applied in an actual litigation setting
violates Rule 11 of the Rules of Civil Procedure.  This Court finds that Rule 1.2(c), which
permits  an attorney to  limit  the scope of representation  with  the  client‟s informed
consent, does not require this Court to conclude that Attorney Swain‟s practice of
preparing pleadings without disclosing his identity in this case did not violate Rule 11 of
the Rules of Civil Procedure.   Moreover, this Court is doubtful that under Rule 1.2(c), an
attorney may unilaterally invoke discretion to choose not to appear on a client‟s behalf
when the client is called to appear in court.  Rule 1.2(c) does not excuse an attorney from
the  duty  to  provide  competent  representation.    See  Comment  to  Rule                    1.2       (“All
14




agreements concerning a lawyer‟s representation of a client must accord with the Rules
of Professional Conduct and other law.  See, e.g., Rules 1.1, 1.8 and 5.6.”).
While the existence of Rule  1.2(c) does not  imply that ghostwriting cannot
amount to a violation of Rule 11, this Court does not mean to suggest that the Rules of
Professional Conduct are entirely irrelevant to the present Rule 11 inquiry.   In fact, it is
this Court‟s opinion that the Rules of Professional Conduct should more broadly inform
the Court‟s judgment as to what types of attorney misconduct are meant to fall within the
intended scope of potential Rule 11 sanctions.   The most significant flaw in Attorney
Swain‟s argument is not that he looks to the Rules of Professional Conduct to support his
position, but rather that he looks to those Rules too narrowly, emphasizing only Rule
1.2(c), which, in any case, does not speak directly to the ethics of                            “ghostwriting.”
Indeed, there is no shortage of judicial opinions that use litigation ethics rules as a broad
guideline for evaluating the applicability of Rule  11 to instances of alleged attorney
misconduct.   See, e.g., Glover v. Libman, 578 F. Supp 748, 769 (N.D. Ga. 1983); In re
Ronco, Inc., 105 F.R.D. 493, 497 (N.D. Ill. 1985); Fleming Sales Co. v. Bailey, 611 F.
Supp. 507, 519-20 (N.D. Ill. 1985); Pope v. Federal Express Corp., 138 F.R.D. 675, 681-
82 (W.D. Mo. 1990).
A
Undue Advantage
In evaluating the applicability of Rule 11 to the practice of ghostwriting in this
case, this  Court first  makes  several  observations  concerning the Court‟s customary
practices and the general ethical obligations of Rhode Island attorneys that Rule 11 is
designed to police.   See Richard G. Johnson, Integrating Legal Ethics & Professional
15




Responsibility With Federal Rule of Civil Procedure 11, 37 Loy. L. Rev. 819, 914-917
(Winter 2004).   First, it is well known and generally accepted in Rhode Island that our
courts exhibit leniency and provide assistance to pro se litigants.   Gray v. Stillman White
Co., Inc., 522 A.2d 737, 741 (R.I. 1987).   This is consistent with practices nationwide,
see Haines, 404 U.S. at 520-21; U.S. v. Day, 969 F.2d 39, 42 (3d Cir. 1992), and courts
finding ghostwriting improper often protest that ostensibly pro se litigants who have
benefited from ghostwriting are given an undue advantage.  See Delso, 2007 WL 766349,
at *13.   This Court agrees that such litigants “would be granted greater latitude as a
matter of judicial discretion in hearings and trials” and “[t]he entire process would be
skewed to the distinct disadvantage of the nonoffending party.”   Johnson v. Bd. of Cnty.
Comm‟rs,  868  F.  Supp.  1226,  1231  (D.  Colo.  1999);  see  also  Laremont-Lopez  v.
Southeastern Tidewater Opportunity Ctr.,  968 F. Supp.  1075,  1078  (E.D. Va.  1997)
(“[T]he indulgence extended to the pro se party has the perverse effect of skewing the
playing field rather than leveling it.”); Wesley v. Don Stein Buick, Inc., 987 F. Supp.
884, 885-87 (D. Kan. 1997) (stating that the advantage to the pro se litigant would skew
the proceedings “to the distinct disadvantage of the nonoffending party”).   Moreover, it
may also be true that “[s]uch activities negatively taint the Court towards the appearance
of well meaning pro se litigants who have no legal guidance at all and rely on the Court‟s
discretionary patience in order to have a level litigating field.”   In re Mungo, 305 B.R.
762, 769 (Bankr. D. S.C. 2003).
This Court also finds that the assistance afforded ostensibly pro se litigants creates
a predicament for both the courts and the adversaries of those pro se litigants. “This
dilemma strikes at the heart of our system of justice, to wit, that each matter shall be
16




adjudicated fairly and each party treated as the law requires.”   Delso, 2007 WL 766349,
at *13.   A court considering a pleading or other filing seemingly presented by a pro se
party will likely be more lenient toward mistakes or inaccuracies.   Thus, the unequal
treatment of pro se and represented parties is likely to be manifestly unfair given that
both have enjoyed the assistance of counsel while one party receives more lenient
treatment from the court.   Moreover, the adversary of the ostensibly pro se party must
contend with Rule 4.2 of the Rhode Island Rules of Professional Conduct, which states
that “[i]n representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by
law or court order.”  Given that the Defendant‟s ghostwritten Objection stated only that it
was “prepared by, or with the assistance of, an attorney licensed in RI and employed by
Consumer Law Associates, LLC / Consumer Law Associates, LLP (CA, MI) / Consumer
Law Associates, PLLC (NC) - 972-239-4804,” the grounds upon which the Plaintiff in
this case could ethically communicate with the “pro se” Defendant are unclear.   The
Defendant‟s Objection suggests that he has secured representation while at the same time
the Defendant is appearing as pro se.   To complicate matters, it is not clear that Attorney
Swain is even employed by Consumer Law Associates, given his June 6, 2011 testimony
that he is paid by Persels and Associates, a different law firm based out of Maryland
whose relationship to “Consumer Law Associates” is murky.   (June 6, 2011 Tr. at 2.)
Attorney  Swain‟s  involvement  in  the  Defendant‟s  case  has  unquestionably
detracted from the administration of justice because of his failure to identify himself to
the tribunal as the attorney of record.   Cf. In re Mungo, 305 B.R. at 770 (finding that
17




ghostwriting frustrates the operation of the court because attorneys of record are not
available to perform the ordinary tasks of litigation).
B
Violation of Rules and Ethical Concerns
The Court now moves to a discussion of Rhode Island‟s Rules of Professional
Conduct, which are replete with ethical guidelines and obligations placed upon attorneys
that should inform the standard for determining the intended scope of potential Rule 11
sanctions.                                                                                      “Courts and ethics opinions often cite ghostwriting as a breach of ethical
duties  and  prohibitions  concerning  deception.”    Jona  Goldschmidt,  In  Defense  of
Ghostwriting, 29 Fordham Urb. L.J. 1145, 1159 (2002).   While Rule 1.2(c), as discussed
above, permits an attorney to “limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent,” an attorney
must of course act consistently with the remainder of the Rules of Professional Conduct
as well.   This Court looks to several specific ones.   For example, Rule 3.2 of Article V,
the  Supreme  Court  Rules  of  Professional  Conduct,  mandates  that  an  attorney  not
unreasonably delay the client‟s litigation.   Rule 3.3 mandates candor toward the tribunal.
Rule 8.4(c) prohibits attorneys from engaging in “conduct involving dishonesty, fraud,
deceit, or misrepresentation.”   The Court finds that all of these factors must be taken into
account when determining whether the practice of preparing pleadings without disclosure
of identity, in this case by Attorney Swain, was a sanctionable violation of Rule 11.
Rule 3.2 provides:                                                                              “A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.”    As discussed above, Attorney Swain‟s
involvement in this case has not resulted in expeditious litigation; in fact, his involvement
18




has  achieved  quite  the  opposite.    While  the  delays  caused  by  Attorney  Swain‟s
ghostwriting have done a disservice to the Plaintiff, this is also not to say they have been
consistent with the interests of his client, who, presumably, is still making monthly
payments for purposes of  “debt consolidation” rather than paying back her creditors.
What Attorney Swain‟s ghostwriting practice in this case is consistent with, however, is
the debt settlement industry‟s “primary tactic” of “convincing the creditor that, after a
long period of no payment and no contact, some income is better than none.”   Donovan,
113 W. Va. L. Rev. at 216.   Moreover, it is consistent with the industry‟s reputation for
causing net financial harm to its customers.  See NYC Bar Association White Paper at 2.
Rule  3.3 defines an attorney‟s duty of candor to the court, and provides, in
relevant part, that:
“(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false.
If a lawyer, the lawyer‟s client, or a witness called
by the lawyer, has offered material evidence and the
lawyer comes to know of its falsity, the lawyer shall
take  reasonable  remedial  measures,  including,  if
necessary, disclosure to the tribunal . . .
(b) A lawyer who represents a client in an adjudicative
proceeding and who knows that a person intends to engage,
is  engaging  or  has  engaged  in  criminal  or  fraudulent
conduct  related  to  the  proceeding shall  take  reasonable
remedial measures, including, if necessary, disclosure to
the tribunal.”
In Rhode Island, the duty of candor to the tribunal is an affirmative one.   See Sup. Ct. R.
Prof. Cond. Rule 3.3(c).   The duty of candor to the tribunal is “particularly significant to
ghostwritten pleadings.”   Duran v. Carris, 238 F.3d 1268, 1271 (10th Cir. 2001) (quoting
John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se
19




Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687, 2697
(1999)).   In Duran, the court further noted that “[i]f neither a ghostwriting attorney nor
her pro se litigant client disclose the fact that any pleadings ostensibly filed by a self-
represented litigant were actually drafted by the attorney, this could itself violate the duty
of  candor.”     Id.     Moreover,                                                               “[a]  lawyer  should  not  silently  acquiesce  to  such
representation . . . [as these] arrangements interfere with the Court‟s ability to superintend
the conduct of counsel and parties during the litigation.”   U.S. v. Eleven Vehicles, 966 F.
Supp.                                                                                            361,                                                       367  (E.D.  Pa.   1997).    Ghostwriting  in  the  context  of  this  case   “is  a
misrepresentation  that  violates  an  attorney‟s  duty and  professional  responsibility to
provide the utmost candor to the Court.”  In re Mungo, 305 B.R. at 769.  As another court
put it, “ghostwriting is „ipso facto lacking in candor.‟”  Delso, 2007 WL 766 349, at *15.
Rules 8.4(c) and (d) prohibit attorney conduct involving a misrepresentation and
conduct that is prejudicial to the administration of justice, respectively:
“It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the
administration of justice.”
Numerous courts around the nation have found that ghostwriting violates an
attorney‟s ethical duties because it involves misrepresentations to the court and interferes
with the administration of justice.   See, e.g., Duran, 238 F.3d at 1272 (determining that
ghostwriting “constitutes a misrepresentation to this court by litigant and attorney”); In re
Mungo, 305 B.R. at 770 (“[T]he effect of ghost-writing on the operation of this Court
cannot be overemphasized.”).  This Court agrees that “[h]aving a litigant appear to be pro
20




se when in truth an attorney is authoring pleadings and necessarily guiding the course of
the litigation with an unseen hand is . . . far below the level of candor which must be met
by members of the bar.”   Johnson,  868 F. Supp. at  1232.   As discussed above, the
ghostwriting in this case has plainly interfered with the administration of justice and
places unreasonable burdens on this Court.   The Court therefore finds that Attorney
Swain‟s practice in this context of preparing pleadings for his ostensibly pro se client,
without  disclosing  his  own  identity,  violates  Rule                                      8.4  of  Rhode  Island‟s   Rules   of
Professional Conduct.
C
Attorney Swain Violated Rule 11
Rule 11, in relevant part, provides as follows:
“Every pleading, written motion, and other paper of a party
represented by an attorney shall be signed by at least one
attorney of record in the attorney‟s individual name . . .                                    .   A
party who is not represented by an attorney shall sign the
party‟s pleading, motion, or other paper . . .                                                .   The signature
of an attorney or party constitutes a certificate by the signer
that the signer has read the pleading, motion, or other paper;
that to the best of the signer‟s knowledge, information, and
belief formed after reasonable inquiry it is well grounded in
fact  and  is  warranted  by  existing  law  or  a  good  faith
argument  for  the  extension,  modification,  or  reversal  of
existing law, and that it is not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation . . .                                             .   If a pleading,
motion, or other paper is signed in violation of this rule, the
court, upon motion or upon its own initiative, may impose
upon the person who signed it, a represented party, or both,
any appropriate sanction, which may include an order to pay
to the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading,
motion, or other paper, including a reasonable attorney‟s
fee.”
21




The Court finds it manifestly obvious that the concerns addressed by Rules 3.2,
3.3, and 8.4(c) of the Rules of Professional Conduct are closely related to the concerns
addressed in Superior Court Rules of Civil Procedure, Rule  11.    Like the Rules of
Professional  Conduct,  Rule                                                                    11  is  intended  to  ensure  that  attorneys  do  not  create
unnecessary delays in litigation, that attorneys at all times act with candor toward the
tribunal, and that attorneys do not engage in conduct that is dishonest, fraudulent, or
deceitful.  Cf. Laremont-Lopez, 968 F. Supp. at 1078 (“The purpose of Rule 11 is to deter
conduct that frustrates the just, speedy, and inexpensive determination of civil actions.”).
This Court concludes that it is the intent of Rule  11 to enforce the ordinary ethical
obligations of Rhode Island attorneys in their interactions with the courts, and to provide
for sanctions when attorneys fall short of these standards.
Furthermore, Rule 11 requires that all papers of a party represented by an attorney
be signed by an attorney of record in the attorney‟s name.  The purpose of the signature is
to act as a certificate by the attorney that he has complied with his ethical obligations.
When an attorney drafts his client‟s litigation papers in this context, refuses to sign them,
and instead instructs his client to file the papers as pro se, this Court determines that the
papers have been signed “in violation of” Rule 11.
When such papers are signed in violation of Rule 11, Rule 11 further provides
that the court “may impose upon the person who signed it, a represented party, or both,
any appropriate sanction.”   While this language might be read to suggest that a non-
signing attorney cannot be sanctioned under Rule 11, the Court finds that this reading
runs contrary to the clear intent of Rule 11, which is to enforce an attorney‟s ethical
obligations of candor and honesty in interactions with the tribunal.   See Laremont-Lopez,
22




968 F. Supp. at 1077 (“The Court believes that the practice of lawyers ghostwriting legal
documents to be filed with the Court by litigants who state they are proceeding pro se is
inconsistent with the intent of certain procedural, ethical, and substantive rules of the
Court.”).   The text of Rule 11 sets up a clear dichotomy between “the person who signed
[the paper]” and “a represented party.”   It is clear to the Court that in the ghostwriting
context, the proper counterpart to Rule 11‟s “represented party,” on whom the court may
impose sanctions, is not literally “the person who signed [the paper],” but rather “the
represented party‟s attorney.”    Otherwise, the clarifying phrase  “or both” would be
rendered meaningless, referring not to two distinct individuals (attorney and client), but
only to one, i.e., the represented party who presents himself in court as pro se.   Cf.
Laremont-Lopez, 968 F. Supp. at 1078 (“Who should the Court sanction if claims in the
complaint prove to be legally or factually frivolous, or filed for an improper purpose?”).
In any case, ghostwriting in this context is impermissible because it “effectively nullifies
the certification requirement of Rule 11.”8   Laremont-Lopez, 968 F. Supp. at 1078; see
also Johnson, 868 F. Supp. at 1231 (calling ghostwriting a “deliberate evasion of the
responsibilities imposed on counsel by Rule 11”); In re Mungo, 305 B.R. at 768 (stating
that ghostwriting “frustrates the application of” Rule 11).
For the reasons above, this Court finds that Attorney Swain did violate Rule 11
when  he  drafted  litigation  documents  for  his  client,  failed  to  sign  them,  and  then
instructed his client to submit the documents to this Court as if she was pro se.   The fact
that Rule 1.2(c) of the RPC allows an attorney to limit the scope of representation with
the client‟s informed consent does not absolve Attorney Swain of his failure to be candid
8  Likewise, ghostwriting in this context circumvents Rule                                        1.5  of the Rhode Island
Superior Court Rules of Practice governing an attorney‟s withdrawal of appearance.
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with this Court.   It was a conscious misrepresentation for Attorney Swain to instruct the
Defendant to appear as pro se when the Defendant was in fact his client, and had in fact
received substantial legal assistance from him.    See Johnson,  868 F. Supp. at  1232
(“Having a litigant appear pro se when in truth an attorney is authoring pleadings and
necessarily guiding the course of the litigation with an unseen hand is disingenuous to say
the least; it is far below the level of candor which must be met by members of the bar.”).
This Court highlights that there was nothing to indicate Attorney Swain‟s specific
involvement in the Defendant‟s representation on any of the papers that the Defendant
submitted to this Court.   At the June 6, 2011 hearing, Attorney Swain stated that he was
paid  for his  services  by a  law  firm  other  than the one which is  indicated on the
Defendant‟s ghostwritten pleadings.                                                            (June 6, 2011 Tr. at 2.)   Additionally, this Court
notes  that  Attorney  Swain‟s  practice  of  preparing  pleadings  without  disclosing  his
identity in this case has interfered with the administration of justice, harmed the opposing
party, and seemingly accomplished nothing for his client, whose “debt consolidation”
plan hangs in the balance.   While it appears true that the ABA has endorsed ghostwriting
as an ethical legal tactic, and that a number of jurisdictions around the country have
agreed with that view, it also cannot be disputed that ABA ethics opinions and the ethics
determinations of other states are not controlling authority in the State of Rhode Island.
Given that “nine states  . . . in some measure forbid ghostwriting,” see Swain‟s Pre-
Hearing Mem. at 6, this Court struggles to comprehend how Attorney Swain could have
considered it prudent to perform legal ghostwriting services without a more concrete
form of disclosure, based solely on the opinion of the ABA and a purported national
consensus.    Other courts have gone so far as to raise the specter of disbarment for
24




ghostwriting attorneys.   See In re Mungo, 305 B.R. at 767.   Moreover, there is clear and
longstanding federal authority in Rhode Island stating that ghostwriting is a violation of
Rule 11.  See Ellis v. State of Me., 448 F.2d 1325, 1328 (1st Cir. 1971) (“What we fear is
that  in  some  cases  actual  members  of  the  bar  represent  petitioners,  informally  or
otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus
escape the obligation imposed on members of the bar, typified by F.R.Civ.P 11 . . . of
representing to the court that there is good ground to support the assertions made. We
cannot approve of such a practice. If a brief is prepared in any substantial part by a
member of the bar, it must be signed by him.”).                                                 “Ghostwriting is a practice which has
been met with universal disfavor in the federal courts.”   In re Brown, 354 B.R. 535, 541
(Bankr. N.D. Okla. 2006).  In this context, when an attorney prepares pleadings on behalf
of an ostensibly pro se client without disclosing his own identity, it “places the opposing
party at an unfair disadvantage, interferes with the efficient administration of justice, and
constitutes a misrepresentation to the Court.”  Laremont-Lopez, 968 F. Supp. at 1078.
As for Attorney Swain‟s argument that the imposition of sanctions on him would
be unfair or unlawful under the United States Constitution, Art. 1, §12 and the Rhode
Island Constitution, Art. 1, §§ 2, 12, the Court disagrees.                                     “The main purpose of the
prohibition [on ex post facto laws] is to assure that legislative acts give fair warning to
their effect and permit individuals to rely on their meaning until explicitly changed.”
Lerner v. Gill, 751 F.2d 450, 454 (1st Cir. 1985) (citing Weaver v. Graham, 450 U.S. 24,
28 (1981)).                                                                                     “The United States Supreme Court has explained that in order „[t]o fall
within the ex post facto prohibition, a law must [1] be retrospective . . . and [2] „it must
disadvantage the offender‟ . . . by altering the definition of criminal conduct or increasing
25




the punishment for the crime[.]‟”   State v. Desjarlais, 731 A.2d 716, 717-18 (R.I. 1999)
(citing Lynce v. Mathis,  519 U.S.  433,  441  (1997)).                                            “„A law is retrospective if it
„changes the legal consequences of acts completed before its effective date.‟”   Id. at 718
(citing Miller v. Florida, 482 U.S. 423, 430 (1987)).
Here, the Court has found that Attorney Swain violated Rule 11 of the Rhode
Island Rules of Civil Procedure.  Even if sanctions under Rule 11 are considered punitive
in nature, Rule 11 does not meet the definition of a “retrospective law.”   See Desjarlais,
731 A.2d at 718; Miller v. Florida, 482 U.S. at 430.   Rule 11 has the same force and
effect today as it did at when Attorney Swain prepared pleadings for the Defendant in her
debt settlement case, and instructed the Defendant to submit those pleadings to this Court
without disclosing his identity.   There has been no amendment to Rule 11, or any other
legislative  change  regarding  how  Rule                                                          11  should  be  applied  under  the  present
circumstances.  State v. Borges, 519 A.2d 574, 576 (R.I. 1986) (discussing the passage of
new laws as the principal focus of the ex post facto prohibition).   Attorney Swain cites
Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996) for the proposition that  “the Rhode
Island Due Process Clause will preclude retroactive application of new rules of law if the
impact would be particularly unfair under the circumstances.”   (Swain Pre-Hearing Mem.
at 7.)   The Court finds that the imposition of sanctions on Attorney Swain under the
present circumstances is not unfair.   Attorney Swain must have known that his deceitful
conduct made Rule 11 sanctions reasonably foreseeable if discovered.   The fact that
Attorney Swain held the belief that undisclosed preparation of pleadings on behalf of pro
se litigants is generally favored or that such practices are universally in the interests of
pro se litigants is not significant.   Also insignificant is the fact that the documents drafted
26




by Attorney Swain contained language indicating they were prepared by “an attorney
licensed in R.I.”  Such a disclosure lacks the candor required of Rhode Island attorneys in
their interactions with the Courts.  Moreover, at the June 6, 2011 hearing, Attorney Swain
stated that he was paid by a law firm different from the one indicated on the ghostwritten
pleadings.                                                                                        (June 6 Tr. at 2.)   Violations of Rule 11 are distinctly the province of the
Superior Court.   An attorney‟s failure to sign documents he prepared for an ostensibly
pro  se  party  is  categorically  a  misrepresentation  to  the  court  and  the  attorney  is
sanctionable for such misrepresentations under Rule 11.  See Duran, 238 F.3d at 1272.
VI
Conclusion
The Court finds that Rule 11 applies to Attorney Swain‟s practice of preparing
pleadings without disclosing his identity as the practice arose in this case.   The Court
further finds that Attorney Swain‟s undisclosed preparation of pleadings in this case
violated Rule 11.   Pursuant to Rule 11 of the Rhode Island Superior Court Rules of Civil
Procedure, this Court determines that sanctions must thus be imposed on Attorney Swain
in the amount of  $750 for his undisclosed preparation of pleadings on behalf of his
ostensibly pro se client.
27

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