Attorney-to-Attorney Ghostwriting: The Supervision, Confidentiality, and Fee Rules

Short answer: A lawyer may hire another lawyer to draft a brief. The hiring lawyer stays responsible, signs under Rule 11, and must comply with fee-division rules (California Rule 1.5.1, New York Rule 1.5(g)) only if the arrangement actually divides the client’s fee.

Most “ghostwriting ethics” material addresses drafting for self-represented litigants, where the ABA Litigation News reports the view that lawyers “need not disclose that assistance to opposing counsel or the court.” That is a different question. When the drafter works for counsel of record, the issues are supervision, confidentiality, client disclosure, and how the money moves. Background on the model is in our white-label legal drafting overview.

Can a lawyer hire another lawyer to ghostwrite a brief?

Yes. In California, Rule of Professional Conduct 1.1(c) expressly contemplates it: a lawyer “may provide competent representation by (i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent.” In New York, State Bar Ethics Opinion 715 (February 26, 1999) concluded that “A lawyer may be employed as a Contract Lawyer by one or more firms.” Both put the weight on what the hiring lawyer does next.

Who is responsible for a brief drafted by an outside lawyer?

Three separate regimes apply, with different consequences.

Professional discipline. State Bar of California Formal Opinion 2004-165 says the hiring lawyer “remains responsible to the client, which includes responsibility for competently supervising the outside lawyer.” New York Rule 5.1(a) states that “A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to these Rules.”

Court sanctions. In federal court, the signature is the certification. FRCP 11(b) provides that by presenting a paper “an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the contentions are warranted. Rule 11(c)(1) adds: “Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.” Our Rule 11 analysis covers the safe-harbor mechanics.

Confidentiality. New York Rule 1.6(a) begins, “A lawyer shall not knowingly reveal confidential information, as defined in this Rule,” subject to listed exceptions. Opinion 715 ties client notice partly to whether “client confidences will be disclosed to the lawyer.”

Do you have to tell the client you used an outside lawyer?

California. Opinion 2004-165 says the lawyer “must disclose to his client the fact of the arrangement between the member and the outside lawyer” “when the use of the outside lawyer constitutes a significant development in the matter.” If you expect to use outside lawyers from the start, address it in the written fee agreement.

New York. Opinion 715 frames disclosure by role: “if a Contract Lawyer makes strategic decisions or performs other work that the client would expect of the senior lawyers,” then “the firm should disclose the nature of the work performed by the Contract Lawyer and obtain client consent.”

Both opinions predate the current rule sets. Opinion 2004-165 construes California’s former rules (including rule 2-200 on fee division); the current California rules took effect November 1, 2018. Opinion 715 construes New York’s former Code of Professional Responsibility (DR 2-107, DR 4-101, DR 5-105 and others); the current New York Rules took effect April 1, 2009. Treat them as persuasive guidance, not rule text.

Is paying a contract lawyer a fee division?

Opinion 2004-165 sets three conditions under which an hourly payment to the outside lawyer is not a fee division: (1) “The amount paid to the outside lawyer is compensation for the work performed” and “is paid whether or not the law office is paid by the client”; (2) “the amount paid by the attorney to the outside lawyer is neither negotiated nor based on fees” “which have been paid to the attorney by the client”; and (3) “the outside lawyer has no expectation of receiving a percentage fee.” When those are met, the opinion concludes “a division of fees does not occur.” Billing the outside lawyer’s charge to the client as a separately identified cost likewise “would not constitute a regulated division of fees,” but then the lawyer “must state the client’s obligations for those charges in the written fee agreement.”

Fail those conditions, for example by paying the drafter a share of the recovery, and the fee-division rules below govern.

Fee division and supervision rule table

Provision	Operative language	Source
Cal. RPC 1.5.1(a)(1)	“the lawyers enter into a written agreement to divide the fee;”	State Bar of California, Rules of Professional Conduct (2026 compilation)
Cal. RPC 1.5.1(a)(2)	“the client has consented in writing, either at the time the lawyers enter into the agreement to divide the fee or as soon thereafter as reasonably practicable, after a full written disclosure”	Same
Cal. RPC 1.5.1(a)(3)	“the total fee charged by all lawyers is not increased solely by reason of the agreement to divide fees.”	Same
Cal. RPC 1.1(c)	“associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent”	Same
N.Y. RPC 1.5(g)	“A lawyer shall not divide a fee for legal services with another lawyer who is not associated in the same law firm” unless the listed conditions are met	22 NYCRR Part 1200, nycourts.gov
N.Y. RPC 5.1(a)	“A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to these Rules.”	22 NYCRR Part 1200, nycourts.gov
ABA Model Rule 1.5(e)(2)	“the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing”	americanbar.org
FRCP 11(c)(1)	“a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.”	law.cornell.edu

California’s (a)(2) disclosure must cover “(i) the fact that a division of fees will be made; (ii) the identity of the lawyers or law firms that are parties to the division; and (iii) the terms of the division.” Under (b), the rule “does not apply to a division of fees pursuant to court order.” New York’s 1.5(g) conditions, paraphrased from the rule: the division is proportional to services performed or each lawyer assumes joint responsibility in a writing given to the client; the client agrees after full disclosure of the division and each lawyer’s share, confirmed in writing; and the total fee is not excessive.

Drafting-ready text: engagement letter clause and mid-matter disclosure

ENGAGEMENT LETTER CLAUSE (use of outside counsel for drafting)

Use of Outside Lawyers. [FIRM] may engage licensed attorneys who are
not members of [FIRM] to assist with legal research and drafting in
your matter. [FIRM] will supervise and review that work and remain
responsible to you for it. Outside lawyers are bound by confidentiality
and screened for conflicts before receiving information.

[Option A: absorbed in fee] Charges for outside lawyers are included
in [FIRM]'s hourly rates and will not be billed to you separately.

[Option B: billed as a cost] Charges for outside lawyers will be billed
to you as a separately identified cost at the amount [FIRM] actually
pays, currently $[RATE] per hour, and you agree to pay those charges.

MID-MATTER DISCLOSURE (significant development)

To meet the [DATE] deadline for [DOCUMENT], [FIRM] has engaged
[OUTSIDE LAWYER], a member of the [STATE] bar, to prepare a first draft
under my supervision. [FIRM] pays [OUTSIDE LAWYER] hourly for the work,
regardless of whether or when you pay [FIRM], and [OUTSIDE LAWYER] has
no interest in any recovery. I will review, revise, and sign the final
[DOCUMENT], and I remain responsible to you for it.

A true fee division needs more than this letter: see the table above.

Worked example: hourly drafter versus percentage drafter

Arrangement A. A California firm has a summary judgment opposition due. It hires an outside lawyer for 18 hours at a fixed $150 per hour, payable on invoice whether or not the client pays. Cost to the firm: 18 x $150 = $2,700. The rate was not negotiated against the client’s fee and the outside lawyer has no claim on any recovery, so all three Opinion 2004-165 conditions are met: compensation for work, not a fee division. If the firm passes the $2,700 through as a cost, the written fee agreement must state the client’s obligation for it.

Arrangement B. Same brief, but the firm promises the outside lawyer 30 percent of a $40,000 contingency fee if the case resolves: 0.30 x $40,000 = $12,000, paid only if the firm is paid. Conditions (1) and (3) both fail. Treat it as a Rule 1.5.1 division: a written agreement between the lawyers, written client consent after the three-part written disclosure, and no increase in the total fee.

How California, New York, and federal practice compare

California is the most prescriptive: a written agreement between the lawyers plus written client consent, with a court-order exception. New York 1.5(g) allows proportionality or joint responsibility in a writing to the client, with a “not excessive” total. ABA Model Rule 1.5(e) tracks New York, requiring client agreement “including the share each lawyer will receive” and that “the total fee is reasonable.” In federal court, the signature duty is FRCP 11. In bankruptcy court, Bankruptcy Rule 9011(b) uses the same certification structure, restyled effective December 1, 2024 in changes the committee note calls “intended to be stylistic only.” Opinion 2004-165 adds, in a footnote, that “local court rules may require such consent as a prerequisite to receiving court-awarded fees,” which matters for fee applications.

Checklist before you hand off a brief

• Run a conflicts check on the outside lawyer before sending any facts. Opinion 715: the contract lawyer “has a duty to inquire as to the identity of the client,” and “Willful ignorance is not a defense to ethical violations.”
• Confirm the outside lawyer is licensed and that you reasonably believe the lawyer competent for the task (Cal. RPC 1.1(c)).
• Decide how the cost is handled: absorbed, billed as a disclosed cost, or a true fee division. Paper it accordingly.
• Test hourly payments against the three Opinion 2004-165 conditions.
• Decide whether this use is a “significant development” requiring client disclosure, and send the letter if it is.
• Read every page and verify every citation before signing; see our pre-filing citation verification protocol.
• For fee applications, check local rules on contract-lawyer time.

Structuring the engagement with LegalBriefsUSA

LegalBriefsUSA engagements can be structured to fit Arrangement A: a quoted price for defined drafting work, invoiced to your firm whether or not your client pays, with no interest in any recovery. You supervise, revise, and sign. We provide a written scope with conflicts confirmation and confidentiality terms at intake, ready for your file or your client letter. See when outsourcing a brief makes financial sense, or request a quote for your next brief.

Authorities cited

Cal. Rules of Prof. Conduct 1.1(c) and 1.5.1, read in the State Bar of California’s 2026 compilation (which states the current rules took effect November 1, 2018), with Rule 1.5.1 confirmed verbatim against a second State Bar document. State Bar of California Formal Opinion 2004-165, read in full text. N.Y. Rules of Prof. Conduct 1.5(g), 1.6(a), and 5.1(a), read in the 22 NYCRR Part 1200 text at nycourts.gov (effective April 1, 2009, as amended). NYSBA Ethics Opinion 715 (Feb. 26, 1999), read at nysba.org. ABA Model Rule 1.5(e), read at americanbar.org. FRCP 11 and Bankruptcy Rule 9011, read at law.cornell.edu. The ABA Litigation News article on ghostwriting for pro se litigants, read at americanbar.org (no publication date shown). Left out for lack of same-day verification: ABA Formal Opinion 08-451 on outsourcing (the ABA’s PDF could not be retrieved); California Rules 5.1 and 5.3 text; the full verbatim text of New York Rule 1.5(g)(1) through (3), which is paraphrased above; any rule on marking up outside-lawyer charges; all case law, including the bankruptcy decision Opinion 2004-165 describes; and malpractice exposure, which is a separate question from discipline and sanctions.

LegalBriefsUSA.com provides drafting and research support to licensed attorneys and law firms. This article is written for attorneys, is not legal advice, and does not create an attorney-client relationship.