Providing Pleading to Unrepresented Adverse Party
Adopted: January 24, 2003
Opinion rules that the lawyer for the plaintiff may not prepare the answer to a complaint for an unrepresented adverse party to file pro se.
Inquiry #1:
A lawsuit must be filed to obtain a divorce order and certain marital property can only be divided by court order. However, other issues between divorcing spouses are often resolved by agreement without filing suit. Frequently, the parties resolve their differences amiably, through formal mediation or otherwise, and filing suit to obtain the divorce or a property distribution order is a mere formality.
The Ethics Committee has been asked, on a number of occasions, whether a lawyer representing one spouse in an amiable marital dissolution may prepare for the other, unrepresented, spouse simple responsive pleadings that admit the allegations of the complaint. It is argued that, if this practice is allowed, the expense of additional legal counsel will be avoided and the proceedings will be expedited. The committee has consistently held, however, that a lawyer representing the plaintiff may not send a form answer to the defendant that admits the allegations of the divorce complaint nor may the lawyer send the defendant an "acceptance of service and waiver" form waiving the defendant's right to answer the complaint. CPR 121, CPR 125, CPR 296. The basis for these opinions is the prohibition on giving legal advice to a person who is not represented by counsel. See also RPC 165 (lawyer may not prepare a pleading that appears to represent the position of the adverse party).
Rule 2.2 allows a lawyer to act as an intermediary between clients with potentially conflicting interests provided certain conditions are met. Rule 2.2 seems to permit the conduct prohibited in the ethics opinions cited in the preceding paragraph. If the conditions in Rule 2.2 are satisfied, may a lawyer act as the intermediary for divorcing spouses and, in this capacity, prepare the divorce pleadings and appear as counsel of record for both parties?
Opinion #1:
No, one lawyer may not appear in court as legal counsel for opposing parties no matter how "friendly" the lawsuit. See Rule 1.7, Cmt. [8].
Inquiry #2:
Assume that the conditions for intermediation between divorcing spouses are satisfied and that the lawyer has been representing both spouses on non-litigation matters. May the lawyer draft the pleadings for both parties but give an unsigned pleading to one party (presumably the defendant) who will appear in the litigation pro se ?
Opinion #2:
No. The pro se client may be confused about the extent of the lawyer's representation in the litigation. The pro se client must be treated as an unrepresented person under Rule 4.3
Inquiry #3:
A lawyer represents only the husband in a domestic dissolution. However, the wife agrees to the divorce and the parties are on amiable terms. The wife is unrepresented and does not want to incur the expense of hiring a lawyer to represent her. May the lawyer prepare a waiver or an answer admitting the allegations of the divorce complaint and give the pleading to the wife to sign and file pro se ?
Opinion #3:
No. See CPR 121, CPR 125, CPR 296, and RPC 165.\f3