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2008 Formal Ethics Opinion 3

January 23, 2009

Assisting a Pro Se Litigant

 

Opinion rules a lawyer may assist a pro se litigant by drafting pleadings and giving advice without making an appearance in the proceeding and without disclosing or ensuring the disclosure of his assistance to the court unless required to do so by law or court order.

Inquiry:

Without appearing in a proceeding or otherwise disclosing or ensuring the disclosure of his assistance to the court, may a lawyer assist a pro se litigant by giving advice on the content and format of documents to be filed with the court including pleadings, by drafting those documents for the litigant, or by giving advice about what to do in court including which witnesses to call, what evidence to present, and how to make opening and closing arguments?

Opinion:

Yes, a lawyer may assist a pro se litigant without disclosing his participation or ensuring that the litigant discloses his assistance unless the lawyer is required to do so by law or court order. Allowing such assistance is consistent with the duty of confidentiality in Rule 1.6, the authority to limit the scope of representation in Rule 1.2, and the duty to assist individuals who cannot afford legal representation as expressed in the Preamble and Rule 6.5. Remaining undisclosed does not violate the duty of honesty set forth in Rules 1.2(d), 4.1, or 8.4(c) or the duty of candor to the tribunal set forth in Rule 3.3(b) unless there is a court order or a law that requires the lawyer to make the disclosure.

In ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 07-446 (2007), the ABA Standing Committee on Ethics and Professional Responsibility held that a lawyer may provide legal assistance to a pro se litigant without disclosing or ensuring the disclosure of the nature or extent of the assistance. With regard to whether it is dishonest or a violation of the duty of candor to the tribunal for the lawyer's assistance to remain undisclosed, the committee wrote that the answer to the question depends on:

whether the failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the part of the client, thereby involving the lawyer in conduct violative of [Model] Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). In our opinion, the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation. Litigants ordinarily have the right to proceed without representation and may do so without revealing that they have received legal assistance in the absence of a law or rule requiring disclosure. Id.

The committee added the following on whether it is dishonest for the lawyer's assistance to be undisclosed:

[the question] turns on whether the court would be misled by failure to disclose such assistance. The lawyer is making no statement at all to the forum regarding the nature or scope of the representation…Absent an affirmative statement by the client, that can be attributed to the lawyer, that the documents were prepared without legal assistance, the lawyer has not been dishonest within the meaning of Rule 8.4(c). For the same reason, we reject the contention that a lawyer who does not appear in the action circumvents court rules requiring the assumption of responsibility for their pleadings. Such rules apply only if a lawyer signs the pleading and thereby makes an affirmative statement to the tribunal concerning the matter. Where a pro se litigant is assisted, no such duty is assumed. Id.

The conclusion that the Model Rules of Professional Conduct do not compel disclosure of a lawyer's background assistance to a pro se litigant is sound and equally applicable to the North Carolina Rules of Professional Conduct.

In response to the decision of a federal magistrate judge in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., Inc., 2007 WL 766349 (D.N.J. 2007), holding that a lawyer violated New Jersey Rule of Professional Conduct 3.3 by "ghostwriting" pleadings for a pro se litigant, the New Jersey Supreme Court Advisory Committee on Professional Ethics issued an ethics opinion that holds that a lawyer who provides drafting assistance to a pro se litigant is not required to notify the court of his role unless "such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants." New Jersey Supreme Court Advisory Committee on Professional Ethics, Op. 713 (2008). However, judicial leniency can not make up for the substantial disadvantage a nonlawyer who appears pro se experiences when the opposing party is represented in court by legal counsel. A lawyer who recommends that a client appear pro se for the sole purpose of gaining the tactical advantage of judicial leniency is providing incompetent legal advice in violation of Rule 1.1 and such conduct is prohibited on this basis regardless of whether there is disclosure to the court of the lawyer's assistance.1

A pro se litigant who seeks a lawyer's advice or assistance outside the courtroom is a client of the lawyer although the representation is limited in scope and the individual may not pay for the advice or assistance. Although the lawyer does not appear in court or sign pleadings, the lawyer must obey the Rules of Professional Conduct applicable to the representation of any client. This includes compliance with the prohibition in Rule 3.1 on filing or asserting frivolous pleadings. The duty of confidentiality in Rule 1.6(a) is also applicable and prohibits the lawyer from revealing information acquired in the professional relationship with the client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or one of the exceptions to the duty of confidentiality in Rule 1.6(b) applies. The only applicable exception allowing disclosure of the lawyer's assistance to a pro se litigant is found in Rule 1.6(b)(1). It allows disclosure of confidential information to comply with the Rules of Professional Conduct, law, or court order. As noted above, the Rules of Professional Conduct do not compel disclosure.

Rule 1.2(c) allows a lawyer to limit the scope of a representation if the limitation is reasonable under the circumstances. As noted in Comment [6] to the rule, "[t]he scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client." Limiting the lawyer's representation to extrajudicial advice and assistance is reasonable when an individual cannot afford to be represented in court. In 2005 FEO 10, the utility of unbundled legal services, or "legal services that are limited in scope and presented as a menu of legal service options from which the client may choose," to clients of limited means was acknowledged. The opinion holds that an internet based law practice may offer unbundled legal services to pro se litigants provided the client gives informed consent to the limited representation and the lawyer makes an independent judgment as to the limited services that can be competently provided under the circumstances. The opinion permits the lawyer to provide assistance to a pro se litigant without entering an appearance in the client's case and without requiring disclosure of the lawyer's behind the scenes assistance.

The Rules of Professional Conduct and prior ethics opinions recognize the importance of providing assistance to individuals who cannot afford representation. The Preamble, Rule 0.1, states that "[t]he basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer." Rule 6.5, Limited Legal Services Programs, permits a lawyer operating under the auspices of a program sponsored by a non-profit organization or court to provide short term limited legal services to a client without expectation that the lawyer will provide continuing representation to client. These short-term services frequently include advice about the nature and content of pleadings the client should file and advice about what to expect and what to do in court. The rule does not require a participating lawyer to disclose his assistance to the court in which pleadings are filed or to ensure that the client makes the disclosure. The importance of encouraging lawyers to participate in such programs is manifested by the relaxation of the rules on conflicts authorized by Rule 6.5(a)(1) and (b).

Similarly, RPC 114 fosters legal assistance to individuals who cannot afford representation but fall outside the economic or subject matter eligibility requirements of legal services organizations. The opinion confirms that it is ethical for a legal services lawyer to draft a complaint for a pro se litigant's signature, explain how to file the complaint, and review courtroom procedure, including advice about strategy, tactics, or litigation techniques, without listing herself as the attorney of record. There should be no distinction between what a legal services lawyer and a lawyer in private practice may ethically do behind the scene to assist those who cannot afford full representation.

For the public policy reasons set forth above and because disclosure of the lawyer's assistance is not compelled by the Rules of Professional Conduct, a lawyer may assist a pro se litigant without disclosing his assistance to the court and without ensuring that the client discloses the assistance to the court unless the lawyer is compelled to make the disclosure by law or by a court order.2

Endnotes

1. Accord ABA Formal Opinion 07-446 (2007)(undisclosed assistance "will not secure unwarranted 'special treatment' for that litigant or otherwise unfairly prejudice other parties to the proceeding. Indeed, many authorities studying ghostwriting in this context have concluded that if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal. If the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage.").

2. Consistent with 32 CFR 776.57, a military lawyer who is licensed in another jurisdiction may provide legal advice and assistance to military personnel. This opinion does not limit or expand that authority.

 

 

 

 

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