Ethics Docket No. 1990-11

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-11

Preparing Answer for Pro-Se Adverse Party

In your letter you have asked the Committee to reconsider its position enunciated in its Formal Opinion 77-1 issued on November 30, 1976, based on the fact that the Disciplinary Rule upon which that opinion was based was not re-adopted in the new Maryland Rules of Professional Conduct. Specifically, Formal Opinion 77-1 held that it would be a violation of Disciplinary Rule DR7-104(a)(2) of the Code of Professional Responsibility for an attorney for one party in a domestic relations case to prepare an answer for the adverse party to be signed and filed in proper person. Disciplinary Rule DR7-104(a)(2) provides that:

"During the course of his representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other then the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."

You have noted that the closest counterpart to this Disciplinary Rule in the Rules of Professional Conduct is Rule 4.3 which provides:

"In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."

You have suggested that the requirements of Rule 4.3 are "not as strict" as those of Disciplinary Rule DR7-104(a)(2); and, with the observance of proper safeguards, the preparation by an attorney for one party in a domestic relations case of an answer for the party to be signed and filed in proper person should be permitted under the new Rules. You have enclosed with your letter a sample answer in which the unrepresented party expressly acknowledges the following:

"Defendant ha specifically requested the Plaintiff's attorney to prepare this answer for filing. Defendant understands that the Plaintiff's attorney represents only the Plaintiff and cannot represent the Defendant or give any advice the Defendant other than advice to obtain Defendant's own counsel. Knowing this, Defendant chooses not to be represented by an independent lawyer, and for Defendant's own convenience, chooses to sign this Answer prepared by Plaintiff's attorney. Defendant has not been coerced, threatened or deceived as to giving up the right to be advised by independent counsel."

As noted in the commentary under Rule 4.3 in the ABA's Annotated Model Rules of Professional Conduct at page 275, "Whether a lawyer may submit papers to an unrepresented party for signature depends upon whether the lawyer's actions are categorized as the rendition of legal advice or mere communication. The distinction is difficult to discern in many cases." The ABA Standing Committee on Ethics and Professional Responsibility has held in one case that a lawyer may not present an unrepresented Defendant in a domestic relations case with an answer (ABA Informal Opinion 1140), while in another case they held that counsel may submit an answer for signature to an unrepresented party, provided the lawyer does not advise the unrepresented party as to the law (ABA Informal Opinion 1269).

It is the opinion of this Committee that, while the language of the applicable Rule has changed, the essential purpose of the Rule, i.e. to protect an unrepresented person from being mislead or taken advantage of by counsel for the represented party, remains the same. Notwithstanding the disclaimers contained in your sample Answer, the unrepresented party is nevertheless placed in the position to decide whether or not to sign the Answer based on representations and assurances made t him by counsel for the represented party. It is this opportunity to influence the unrepresented party which the Committee believes Rule 4.3 was designed to prohibit. Consequently, the Committee continues to believe that it would not be ethical for an attorney for one party in a domestic relations case to prepare an Answer for the adverse party to be signed and filed in proper person.

The Committee notes that the disclaimers set forth in the sample Answer enclosed with your letter are designed to respond to the reasoning of the Committee in Formal Opinion 77-1 to the effect that an attorney, even with consent, should not be permitted to represent both parties in an adversary matter; that it would mislead the Court in giving the impression that the pleading had been prepared in proper person; and that Canon 9 requires all lawyers to avoid the appearance of impropriety. Nevertheless, as stated in the comment to Rule 4.3 "an unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client." Thus, even with the best of intentions, when the lawyer for the represented party contacts the unrepresented party, he places himself in a position to influence the unrepresented party in making a decision which may not be in his/her best interest.

The Committee would further note that, while Disciplinary Rule 7-104(a)(2) has not been repeated as a rule in the new Maryland Rules of Professional Conduct, it is set forth essentially verbatim in the Comment to Rule 4.3 as noted in the Preamble to the Rules, "the Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule."