Advising the Pro Se Litigant
Adopted: July 12, 1991
Opinion rules that attorneys may give legal advice and drafting assistance to persons wishing to proceed pro se without appearing as counsel of record.
Inquiry #1:
Carolina Legal Services (CLS) represents indigent clients who are unable to afford private attorneys. Each client must meet income eligibility requirements in addition to having a type of case which fits within CLS's priority guidelines. All of CLS's attorneys carry a heavy caseload and the private bar is not always able to do enough through its own pro bono efforts to help meet all the legal needs of the indigent citizens in the community.
First Hypothetical:
An indigent person comes to CLS. She and her husband have recently separated and she has no job, no money and cannot afford to hire an attorney. Due to her marital situation, she has ample grounds for an alimony claim, which could be accomplished through a divorce from bed and board. She would like to file some sort of action, possibly a divorce from bed and board, to obtain some temporary alimony, child custody and child support. Unfortunately, CLS cannot represent her.
Can a CLS attorney draft a complaint seeking divorce from bed and board for the woman, explain to her how to file it, have the woman sign her name on all the pleadings, go over courtroom procedure with her, but allow her to represent herself in court pro se and not list herself as the attorney of record?
Opinion #1:
Yes, as the comment to Rule 3.1 makes clear, an attorney may counsel nonlawyers who wish to proceed pro se. In so doing an attorney may provide assistance in the drafting of legal documents, including pleadings. When an attorney provides such drafting assistance, the Rules of Professional Conduct do not require the attorney to make an appearance as counsel of record.
Inquiry #2:
Are there court approved pleading forms that CLS attorneys can give the woman to sign and file pro se?
Opinion #2:
If such forms exist, attorneys may make them available to individuals wishing to proceed pro se.
Inquiry #3:
Are the ethical considerations the same if CLS attorneys make their own form pleadings available to the indigent woman to sign and file pro se?
Opinion #3:
See the answer to question #1.
Inquiry #4:
Assuming a CLS attorney can do the above, is there a difference, ethically, as to which party, the attorney or the woman, actually drafts the pleadings or fills out any court approved forms which may exist, so long as the attorney clearly states that she is not representing the woman, but is merely helping her with her lawsuit?
Opinion #4:
No.
Inquiry #5:
Second Hypothetical:
A man comes into CLS's office. He has just been served with a custody complaint by his ex-wife. CLS cannot take the case. The man is willing to consent to his ex-wife's having custody but wants to make sure that his rights are protected as far as visitation, etc.
Can a CLS attorney draft an answer for him without signing the pleading if she lets him know that she is not representing him and that he must proceed pro se?
Opinion #5:
See the answer to question #1 above.
Inquiry #6:
If a CLS attorney is not the attorney of record, how much leeway would such an attorney have in advising the man on how to represent himself in court if he and his ex-wife are unable to settle the custody matter? Can the attorney instruct him on which witnesses to call, what evidence to present and how to give an opening and closing argument? Can the attorney fill out subpoenas for him or instruct him on how to fill them out himself?
Opinion #6:
Nothing in the Rules of Professional Conduct prohibits a lawyer from volunteering advice regarding strategy, tactics or techniques of litigation. As was mentioned above, an attorney volunteering assistance to an individual wishing to proceed pro se may offer assistance in drafting documents or completing forms.
Inquiry #7:
Third Hypothetical:
A woman consults CLS about stopping the physical abuse that her husband frequently subjects her to. She has already taken out an assault warrant, but wants to proceed pro se with a 50B Domestic Violence Protective Complaint. No CLS attorney can represent her in court.
Can a CLS attorney fill out the 50B complaint for her based on the information she has given and have her proceed pro se?
Opinion #7:
Yes.
Note: While it appears ethically permissible for an attorney to volunteer assistance of the sort described above without appearing as counsel of record, it is noted that attorney-client relationships would generally be formed under such circumstances and the Rules of Professional Conduct, particularly those concerning confidentiality and conflict of interest would apply. The Ethics Committee offers no opinion on the question of whether attorneys undertaking to offer such voluntary assistance might be liable for malpractice but suggests that any lawyer acting in such capacity would be required by Rule 6 to act competently in offering advice and assistance.