It’s not working out well for Ice Legal, but ethics lawyers say there’s nothing wrong with attorneys ghostwriting court pleadings for pro se litigants.
The Royal Palm Beach law firm offers “unbundled” and “as-needed” services to litigants who represent themselves in court. Its attorneys doesn’t attend hearings or sign any of the pro se court filings, but the foreclosure defense firm does everything else for clients paying a flat fee of about $200 per month.
That’s good news for clients, who would otherwise spend four times as much, according to firm founder Thomas Ice. But it’s bad for Ice Legal — now in hot water with judges who sanctioned at least one of its clients and demanded its attorneys show their face for litigation involving their “ghostwritten” pleadings.
But here’s the rub: Ethics lawyers say Ice Legal appears to be in strict compliance with Florida Bar rules. Plus they say the service allows clients in financial distress to afford legal representation.
“It is an access-to-justice rule,” said Florida Bar ethics committee member Andrew S. Berman, senior partner at Young Berman Karpf & Gonzalez in Miami. “When used properly, it could be of great benefit to clients.”
The Florida Bar Rules of Professional Conduct allow limited representation as long as attorneys provide clear notice of their participation. Under the rule, a lawyer may draft and not sign documents for a pro se litigant but must add language to show the filing was “prepared with the assistance of counsel.”
Ice Legal’s pleadings include this disclosure, but experts say some jurists and attorneys misunderstand the guidelines.
“The issue is the language that’s being used … is in the comments to the rule. It’s not in the actual rule. That might be where the disconnect is,” said Bast Amron special counsel Brian Tannebaum, who represents attorneys in civil and criminal courts and in disciplinary matters before the Florida Bar and Board of Bar Examiners. “This is why I always tell lawyers to read the comments because the comments give great insight into the interpretation of the rule.”
The comments include a subhead on “Agreements limiting scope of representation.” That section reads in part: “If the lawyer assists a pro se litigant by drafting any document to be submitted to a court, the lawyer is not obligated to sign the document. However, the lawyer must indicate ‘Prepared with the assistance of counsel’ on the document to avoid misleading the court, which otherwise might be under the impression that the person, who appears to be proceeding pro se, has received no assistance from a lawyer.”
Tannebaum said, “Not to offend any judges, but as I’m telling lawyers (to read closely) … I guess I should also say to judges, ‘By the way, keep reading and look at the comments.’ ”
Meanwhile, Berman, who’s lectured on limited representation, said ghostwriting is common in family court where litigants often represent themselves for financial reasons.
Ice Legal’s predicament suggests the firm is perhaps pioneering the same model in foreclosure cases.
“It’s a rule that’s still in its infancy,” Berman said. “It’s still trying to find its equilibrium.”
Thomas D. Hall, who sits on the Florida Bar’s rules of judicial administration committee, acknowledged confusion among jurists but said industry leaders hope to change this.
For instance, the Florida Commission on Access to Civil Justice focuses on unbundling legal services as part of efforts to assist low- to moderate-income litigants.
“If judges are not familiar with that rule or not understanding, that’s problematic,” said Hall of the Mills Firm in Tallahassee.
It’s proven problematic for Ice Legal and client Jeffrey Haym, who’s now fighting to vacate a $350 sanction from Miami-Dade Circuit Judge Abby Cynamon.
Haym is defending a foreclosure suit by The Strand on Ocean Drive Condominium Association Inc., which claims he failed to pay about five years’ worth of assessments at a condo-hotel in South Beach.
During a hearing on Haym’s motion to dismiss the complaint, Cynamon noticed a line at the bottom of the defendant’s filing indicating he had legal assistance. She asked why his attorney was not in court and then ordered Ice Legal to participate or enter a notice of nonrepresentation.
The judge postponed the hearing and ordered Haym to reimburse the association an hour’s worth of attorney fees for the time spent in court that day. She later denied without prejudice Haym’s motion to vacate the sanction.
“Parties shall coordinate a hearing at which they shall provide legal authority for the ‘limited representation’ referenced in the motion,” Cynamon wrote in her March 1 order.
It was an unexpected turn for Haym, who said he continues to trust Ice Legal.
“The one thing I don’t want to do is take an overly aggressive stance and anger the judge. But it just seems we’re following everything by the rules,” he said. “I really appreciate Ice Legal and how they’re helping me. … I really feel they’ve got my back.”