In recent years, it has become increasingly common for Supreme Court briefs to be ghostwritten or penned by someone other than the attorney who signed the document. Although not illegal, this strategy is raising ethical questions within the legal field.
A recent example of this practice fell under scrutiny when metadata from a U.S. Supreme Court brief hinted that a New York consumer fraud attorney, who signed the brief, may not have been the actual author.
The practice of ghostwriting in the legal profession is not new. It is common for law firms, corporations, and even government entities to have junior associates, paralegals, or professional writers draft court documents, memos, and letters. These documents are then reviewed and signed off by a senior attorney.
However, the controversy arises when ghostwritten documents are submitted to the highest court in the land. The U.S. Supreme Court expects that the legal professional whose name is on a document has fully participated in its preparation and can stand behind its arguments and assertions.
The expectation is based on a key tenet of professional responsibility – that an attorney should not make a false statement of fact or law to a tribunal, or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. Hence, when an attorney signs a brief they did not write, critics argue it may infringe upon these ethical guidelines.
Despite the undercurrents of controversy, ghostwriting briefs appears to be an entrenched practice. Especially in cases that draw a significant amount of amicus, or “friend of the court”, briefs, it is common for specialized firms or advocacy groups to draft and circulate briefs for signature by other attorneys.
Indeed, this practice can help facilitate the participation of a broad swath of legal professionals in important legal debates. However, the question of ethics and transparency persists, striking a delicate balance between leveraging legal expertise and upholding the integrity of the legal profession.