Can a Florida lawyer prepare pleadings for a party without signing them, and can the lawyer counsel both spouses to draft a settlement before representing one in the divorce?

Plain-English summary

The committee answered two questions. First, whether an attorney may prepare pleadings without signing as attorney for a party. The committee concluded that Florida Rule of Civil Procedure 1.030(a) requires an attorney of record to sign pleadings prepared by him, but there is no affirmative obligation to sign for a lawyer who is not the attorney of record. The committee observed that it is not uncommon for a lawyer to offer limited services in assisting a party with drafting papers while stopping short of representing the party as attorney of record, and found no impropriety where the attorney does not sign in that circumstance.

Second, whether an attorney may enter into discussions with both husband and wife to prepare a settlement agreement in a divorce and then represent one of the parties in the dissolution. The majority concluded that even if technical compliance with Canons 4 and 7 could be maintained, representing one party after counseling both involves such a strong appearance of impropriety under Canon 9 that the conduct must be prohibited. The majority reasoned that the nature of a dissolution action creates a high probability the attorney's conduct will be scrutinized and could draw an accusation of unethical conduct.

A minority of the committee would have permitted the conduct under conditions: the second party must not be represented by counsel at the time of the discussions, the attorney must make clear he does not represent the second party and intends to represent the first party, and the attorney must give the second party no advice other than to obtain counsel. The minority grounded these limits in DR 7-104(A)(1), EC 4-5, and DR 7-104(A)(2).

Currency note

This opinion was issued in the late 1970s, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

The official PDF of this opinion does not carry a printed issuance date; the opinion number places it in the late 1970s. As the opinion's own note records, Rule 4-1.2 was later amended to add subdivision (c) addressing limited-scope representation.

Common questions

Q: Can a Florida lawyer prepare pleadings without signing them?

A: The opinion concluded there is no impropriety if a lawyer who is not the attorney of record prepares pleadings and does not sign them, because the duty to sign under Fla.R.Civ.P. 1.030(a) falls on the attorney of record.

Q: Can a lawyer counsel both spouses and then represent one in the divorce?

A: The opinion's majority concluded the lawyer may not, finding that representing one party after counseling both creates a strong appearance of impropriety under Canon 9.

Q: Did any committee members disagree?

A: Yes. The opinion records a minority view that the conduct could be permitted if the second party is unrepresented, is clearly told the lawyer represents only the first party, and is given no advice other than to obtain counsel.

Background and rules framework

The opinion interprets the Code of Professional Responsibility provisions then in force: EC 4-5 and DR 7-104(A)(1) and (2), with Canon 9's appearance-of-impropriety standard, alongside Fla.R.Civ.P. 1.030(a). The unrepresented- and represented-person provisions correspond to Model Rules 4.3 and 4.2, and the limited-scope question now maps to Model Rule 1.2(c) (Florida Rule 4-1.2(c)).

Citations and references

Rules of Professional Conduct:

• CPR EC 4-5; DR 7-104(A)(1), (2); Canon 9 (Model Rules 4.2, 4.3, 1.2(c))

Statutes and rules:

• Fla.R.Civ.P. 1.030(a) (duty of attorney of record to sign pleadings)

See also

• FL Bar Ethics Op. 87-1: Multiple Representation of Codefendants
• FL Bar Ethics Op. 02-3: Joint Representation of Driver and Passenger
• FL Bar Ethics Op. 07-3: Unilateral Communications With Prospective Clients

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-79-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-79-7-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 79-7
Advisory ethics opinions are not binding.
It is ethical for an attorney to prepare pleadings without signing as attorney for a party. It is not ethical for an attorney to enter into discussions with both husband and wife in order to prepare a settlement agreement in a divorce action and then represent one of the parties in obtaining the dissolution.
Note: After this opinion was written, Rule 4-1.2 was amended to add subdivision (c) which provides as follows: If not prohibited by law or rule, a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. If the attorney and client agree to limit the scope of the representation, the lawyer shall advise the client regarding applicability of the rule prohibiting communication with a represented person.
CPR: EC 4-5, DR 7-104(A)(1), (2); Canon 9
Misc.: Fla.R.Civ.P. 1.030(a)
We are presented with the following questions:
(1) Is it ethical for an attorney to prepare pleadings without signing as attorney for a party?
(2) Is it ethical for an attorney to enter into discussions with both the husband and wife in order to prepare a settlement agreement in a divorce action, and then represent one of the parties in obtaining the dissolution?
As to the first question, Florida Rule of Civil Procedure 1.030(a) places a duty upon an attorney of record to sign pleadings prepared by him. However, there is no affirmative obligation on an attorney to sign pleadings prepared by him if he is not an attorney of record. It is not uncommon for a lawyer to offer limited services in assisting a party in the drafting of papers while stopping short of representing the party as attorney of record. Under these circumstances, there is no ethical impropriety if the attorney fails to sign the pleadings.
As to the second question, the majority of the Committee is of the opinion that even if the attorney can walk the ethical tightrope required to maintain technical compliance with Canons 4 and 7, as described in the discussion of the minority position set forth below, the representation of one party in a dissolution of marriage action, after counseling with both parties, involves such a strong appearance of impropriety under Canon 9 that the proposed conduct must be prohibited. The very nature of a dissolution action creates a high degree of probability that the attorney's conduct will be scrutinized and that, in spite of full disclosure and his adherence to the safeguards noted by the minority, he could well be subjected to an accusation of unethical conduct.
A minority of the Committee is of the opinion that under certain circumstances the proposed conduct should be permitted. The minority notes that if the other party is represented by counsel at the time of the attorney's conversations with both parties, and these discussions take place outside the presence and without the consent of such counsel, there would be a violation of DR 7-104(A)(1). Assuming the second party is not so represented, the attorney must make clear his intention to represent the first party in the subsequent proceeding. EC 4-5 prohibits a lawyer from using information acquired in the course of his representation of a client to the disadvantage of that client at a later time. The attorney would run afoul of EC 4-5 if during the discussions he allowed the second party to proceed under the impression that he was a client. Therefore, the lawyer must tell the second party that he does not represent him and that he in fact intends to represent the first party in the dissolution action. Finally, DR 7-104(A)(2) would prevent the attorney from giving any advice to the second party, other than recommending that he or she secure counsel. In spite of these substantial proscriptions, the minority feels that if all of the above tests are met (the second party is not represented by counsel at the time of the discussion, the attorney clearly advises the second party that he does not represent him (or her) and that he intends to represent the first party in the subsequent action, and the attorney gives no advice to the party other than to obtain counsel) there is no impropriety under the facts presented.