FIA Card Services, N.A. v. James D. Pichette HSBC Bank Nevada, N.A. v. Robert L. Cournoyer Discover Bank v. Diana L. O'Brien-Auty
116 A.3d 770
R.I.2015Background
- Three Rhode Island attorneys (Vacca, Taylor Humphrey, Swain) drafted pleadings for pro se defendants in separate debt-collection actions but did not sign the filings or formally enter appearances (so-called "ghostwriting").
- Opposing counsel or the court discovered the attorneys’ behind-the-scenes involvement during hearings on dispositive motions, prompting hearing justices to issue show-cause orders and impose Rule 11 sanctions (monetary sanctions of $750 in two cases; a cease-and-desist and notice order in the third).
- Each attorney argued Rule 11 did not apply because they neither signed the pleadings nor were attorneys of record, and asserted their work constituted permissible limited-scope representation under Rule 1.2(c) of the Rhode Island Rules of Professional Conduct.
- The Superior Court hearing justices found Rule 11 and professional-conduct violations and sanctioned the attorneys; each appeal was taken to the Rhode Island Supreme Court.
- The Supreme Court reviewed (de novo) whether Rule 11 reaches nonsigning ghostwriting attorneys and whether anonymous drafting is permitted under Rule 1.2(c).
- The Supreme Court vacated the Rule 11 sanctions, held Rule 11 does not apply to nonsigning ghostwriters, and set policy: limited-scope representation is permitted but drafting assistance must be disclosed in writing and the attorney must sign and identify the nature/extent of assistance on filed documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 11 applies to attorneys who draft but do not sign pleadings or enter appearance | Ghostwriting evades Rule 11's purposes; courts should sanction nondisclosing drafting | Rule 11’s text targets the signer/attorney of record; it does not reach a nondrafting, nonsigning attorney | Rule 11 does not apply to nonsigning ghostwriters; sanctions vacated |
| Whether anonymous drafting violates Rules of Professional Conduct | Anonymous assistance undermines candor and accountability; unethical | Limited-scope (unbundled) representation is permitted under Rule 1.2(c) with informed consent | Limited-scope representation is permitted, but drafting assistance that will be filed must be disclosed and signed; informed consent in writing required |
| Whether federal/circuit precedent requires disclosure or sanctions for ghostwriting | Some federal courts condemn ghostwriting based on Rule 11 spirit and inherent authority | Many authorities and the ABA opinion permit undisclosed assistance absent other misconduct | Court rejected expansive reliance on federal dicta; followed authorities holding Rule 11 not applicable to nonsigning drafters |
| Appropriate supervisory policy for Rhode Island courts | (Amicus/AG) Opposed to nondisclosure; urged prohibition | (Pro-bono proponents) Disclosure encourages safe unbundled representation and access to justice | Adopted supervisory rule: counsel may provide limited assistance but must sign filed documents and disclose nature/extent; invited public comment |
Key Cases Cited
- In re Fengling Liu, 664 F.3d 367 (2d Cir. 2011) (declining sanctions for ghostwriting because no rule required disclosure)
- Ellis v. State of Maine, 448 F.2d 1325 (1st Cir. 1971) (dictum expressing concern that unsigned assistance could evade Rule 11)
- Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) (criticized ghostwriting as misrepresentation to court, relying on inherent powers)
- Mariani v. Doctors Associates, Inc., 983 F.2d 5 (1st Cir. 1993) (describing Rule 11’s inquiry requirement for signers)
- Pleasant Management, LLC v. Carrasco, 918 A.2d 213 (R.I. 2007) (discussing Rule 11 signature certification and sanctioning discretion)