Peruch-Vicente v. Longshore

Filing 16

ORDER by Magistrate Judge Gordon P. Gallagher on 03/12/15, re: attorney help in this case. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00068-GPG
EVELIN ADELA PERUCH-VICENTE,
Applicant,
v.
JOHN LONGSHORE, U.S. DHS-ICE,
UNKNOWN ICE OR BI INCORP. “JAILER,”
Respondents.

ORDER

It has come to the Court’s attention, that private attorney, Jim Salvatore, by his
own admission, has been preparing, or assisting in the preparation of, documents filed
in this case on behalf of Applicant, even though Applicant has signed the documents as
a pro se litigant. (See ECF No. 1, at 5; ECF No. 7, at 13). Mr. Salvatore has engaged
in a similar practice in 15-cv-00196-GPG and 15-cv-00217-GPG.
Pursuant to Fed. R. Civ. P. 11(a), every pleading, motion and other paper filed in
the federal district court must be signed by an attorney of record, in the attorney’s
name, or by the party personally, if the party is unrepresented. See also
D.C.COLO.LAtty R 5(a) (effective 12/1/2014) (formerly D.C. COLO.LCivR 11.1).
Attorneys must appear in actions where they draft pleadings. See Crist v. Mesa
Developmental Servs., No. 09-cv-00761-PAB-BNB, 2010 WL 3842610, at *1 (D. Colo.
July 29, 2010); Jachnik v. Wal–Mart Stores, Inc., No. 07-cv-00263-MSK-BNB, 2007 WL

1216523, at *1 n.2 (D. Colo. Apr. 24, 2007). “Ghost-writing”1 documents by an attorney
for a pro se litigant is prohibited in the District of Colorado. See Chung v. El Paso
School Dist. # 11, No. 14-cv-01520-KLM, 2015 WL 225430, at *3 (D. Colo. Jan. 15,
2015); Crist, 2010 WL 3842610, at *1; Jachnik, 2007 WL 1216523, at *1 n.2.
An attorney who “ghost writes” a brief for a pro se litigant may be subject to discipline
both for a violation of the rules of professional conduct and for contempt of court.2 See
id.; see also Patton v. West, No. 07-4154, 276 F. App’x 756, 757 n. 1 (10th Cir. 2008)
(citing Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884, 885-87 (D. Kan. 1997)
(quoting Johnson, 868 F.Supp. at 1231-32). Cf. Duran, 238 F.3d at 1273 (holding that
“any ghostwriting of an otherwise pro se brief must be acknowledged by the signature
of the attorney involved).”
Furthermore, the Attorney Rules for the United States District Court for the
District of Colorado (effective 12/1/14) expressly disapprove of the limited
representation by counsel in a civil proceeding, except that the Court may enter an
order allowing an attorney to “provide limited representation to an unrepresented
prisoner in a civil action.” D.C.COLO.LAtty R 2(b)(1) (Emphasis supplied). As
recognized by United States Magistrate Judge Kristin L. Mix in a non-prisoner action,

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“Ghost-writing” occurs when an attorney represents a pro se litigant informally or otherwise, and
prepares pleadings, motions, or briefs for the pro se litigant which the assisting lawyer does not sign, and
thus escapes the professional, ethical, and substantive obligations imposed on members of the bar. See
Barnett v. LeMaster, No. 00-2455, 12 F. App’x 774, 778-79 (10th Cir. April 27, 2001) (unpublished).
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In addition to violating an attorney’s ethical obligations and frustrating the purposes of Fed. R.
Civ. P. 11, “ghost-writing” allows the pro se litigant to receive the liberal construction of papers afforded to
pro se filings under Haines v. Kerner, 404 U.S. 519, 520-21 (1972), even though the filing was drafted with
the assisted by an attorney. This situation disadvantages the opposing party. See Duran v. Carris, 238
F.3d 1268, 1272 (10th Cir. 2001); Johnson v. Bd. of County Comm'rs, 868 F.Supp. 1226, 1231-32 (D.
Colo. 1994)), rev'd in part on other grounds, 85 F.3d 489 (10th Cir.1996)).

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there is a dearth of case law as to the precise contours of D.C.COLO.LAttny R 2 (and
its predecessor D.C.COLO.LCivR 83.4). See Chung, 2015 WL 225430, at *3 (D. Colo.
Jan. 15, 2015). The Local Rules adopt the Colorado Rules of Professional Conduct
(Colo. PRC) as standards of professional responsibility for this Court, see
D.C.COLO.LAtty R 2(a), except as provided in D.C.COLO.LAtty R 2(b)(1) which states
that Colo. RPC 1.2(c) (limiting scope of representation) is “excluded from the standards
of professional responsibility for the United States District Court [for the District of
Colorado.” D.C.COLO.LAtty R 2(b)(1) is somewhat ambiguous because it is not clear
what standards are to apply when an attorney provides “limited representation to an
unrepresented prisoner in a civil action.” Absent any case law interpreting the rule, as
applied to a prisoner, the Court construes D.C.COLO.LAtty R 2, as a whole, to direct
the Court to apply the Colorado Rules of Professional Conduct when an order is
entered allowing an attorney to provide limited representation to a prisoner.
Colo. RPC 1.2(c) states: “A lawyer may limit the scope or objectives, or both, of
the representation if the limitation is reasonable under the circumstances and the client
gives informed consent. A lawyer may provide limited representation to pro se parties
as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b).” Colorado Rule of Civil Procedure
11(b) provides:
Limited Representation. An attorney may undertake to provide limited
representation in accordance with Colo. RPC 1.2 to a pro se party
involved in a court proceeding. Pleadings or papers filed by the pro se
party that were prepared with the drafting assistance of the attorney shall
include the attorney's name, address, telephone number and registration
number. The attorney shall advise the pro se party that such pleading or
other paper must contain this statement. In helping to draft the pleading or
paper filed by the pro se party, the attorney certifies that, to the best of the
attorney's knowledge, information and belief, this pleading or paper is (1)
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well-grounded in fact based upon a reasonable inquiry of the pro se party
by the attorney, (2) is warranted by existing law or a good faith argument
for the extension, modification or reversal of existing law, and (3) is not
interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. The
attorney in providing such drafting assistance may rely on the pro se
party's representation of facts, unless the attorney has reason to believe
that such representations are false or materially insufficient, in which
instance the attorney shall make an independent reasonable inquiry into
the facts. Assistance by an attorney to a pro se party in filling out
pre-printed and electronically published forms that are issued through the
judicial branch for use in court are not subject to the certification and
attorney name disclosure requirements of this Rule 11(b).
Limited representation of a pro se party under this Rule 11(b) shall not
constitute an entry of appearance by the attorney for purposes of
C.R.C.P. 121, section 1–1 or C.R.C.P. 5(b), and does not authoriz e or
require the service of papers upon the attorney. Representation of the pro
se party by the attorney at any proceeding before a judge, magistrate, or
other judicial officer on behalf of the pro se party constitutes an entry of an
appearance pursuant to C.R.C.P. 121, section 1–1. T he attorney's
violation of this Rule 11(b) may subject the attorney to the sanctions
provided in C.R.C.P. 11(a).
In applying D.C.COLO.LAtty R 2(b)(1) to the present case, the Court recognizes
that a limited appearance by an attorney is allowed only if the unrepresented party is a
“prisoner.” See D.C.COLO.LAtty R 2(b)(1). The Applicant in this § 2241 action is not in
the physical custody of federal immigration authorities, but she is under an order of
supervision, which constitutes constructive custody under the federal habeas corpus
statutes. See Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir. 2009) (recognizing
that for purposes of the federal habeas corpus statutes, “custody” is not limited to
individuals subject to immediate physical confinement, “but also those subject to
restraints not shared by the public generally that significantly confine and restrain
freedom”); see also United States v. Cervini, 379 F.3d 987, 989 n. 1 (10th Cir. 2004)
(when a prisoner is subject to supervised release, he is still “‘in custody’” for § 2255
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purposes). Absent any guidance on the meaning of “prisoner” in D.C.COLO.LAtty R
2(b)(1), the Court will conclude that Applicant is one. Further, the Court construes
D.C.COLO.LAtty R 2(b)(1) to provide for limited representation of habeas corpus
petitioners because there is no language in the local rule to suggest that habeas corpus
actions are excluded. The Court thus will allow Mr. Salvatore the opportunity to enter a
limited appearance on behalf of the pro se Applicant, as contemplated by
D.C.COLO.LAtty R 2(b)(1).
It is therefore ORDERED as follows:
Pursuant to D.C.COLO.LAtty R 2(b)(1), if Mr. Salvatore intends to continue
drafting pleadings and other filings on behalf of the Applicant, he must first file a motion
requesting a limited appearance for the purpose of assisting the Applicant in drafting
and filing pleadings, motions and other papers in this action. If the motion is granted,
each pleading or other document filed by the pro se Applicant, that is prepared by Mr.
Salvatore or with his assistance, must include the following: (1) a signature block with
Mr. Salvatore’s name, address, telephone number and attorney registration number;
and, (2) Mr. Salvatore’s certification that in helping to draft the pleading or paper filed by
the pro se Applicant, he certifies that, to the best of his knowledge, information and
belief, the pleading or paper is (a) well-grounded in fact based upon a reasonable
inquiry of the pro se party by the attorney, (b) is warranted by existing law or a good
faith argument for the extension, modification or reversal of existing law, and (c) 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 Mr. Salvatore does not file a motion for limited appearance in accordance with
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this Order, he must cease preparing, or assisting in the preparation of, the pro se
Applicant’s filings in this action. Alternatively, Mr. Salvatore may enter his full
appearance, pursuant to D.C.COLO.LAtty R 5(a). Mr. Salvatore is prohibited
henceforth from preparing, in whole or in part, documents that are filed in this action
under the signature of the pro se plaintiff. Mr. Salvatore’s current practice of making a
notation, at the bottom of a signature page, that he “helped prepare” or “prepared” a
filing is unacceptable and not authorized by the Local Rules of this Court.
Mr. Salvatore is warned that failure to comply with this Order may result in the
imposition of sanctions against him pursuant to Fed. R. Civ. P. 11 and any noncompliant pleadings may be stricken.
Dated March 12, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

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