Can a lawyer who mediated a divorce draft the dissolution documents for both unrepresented spouses to file pro se?

Plain-English summary

A lawyer served as mediator in a divorce between a husband and wife, neither represented by counsel. After a successful mediation, the lawyer-mediator drafted the proposed judgment of dissolution, marriage separation agreement, and joint parenting agreement, without putting the lawyer's name on them or entering an appearance, and the spouses filed them and appeared pro se.

The Committee concludes this is improper. By drafting the documents for the unrepresented parties, the lawyer-mediator moves beyond the mediator role and takes on representation of both spouses, creating an incurable conflict. Citing ISBA Opinion 92-05, the opinion explains a lawyer who mediates a dispute cannot then represent the parties in it, and (per ISBA Opinion 98-06) even an uncontested divorce is litigation in which a judgment is entered against both parties, so a lawyer cannot represent both opposing sides regardless of consent. Drafting the dissolution papers for both spouses therefore violates Rule 1.7(a). The Committee distinguishes the ordinary practice in which a mediator memorializes the parties' agreement and the parties' own lawyers then draft the final documents, and notes the Illinois Uniform Mediation Act's mediation privilege could itself interfere with any later representation.

On whether the lawyer could instead limit the scope to document preparation under Rule 1.2(c), the Committee says no on these facts. It reviews ISBA Opinion 849 (permitting limited preparation of pleadings for a pro se client with informed consent) and ISBA Opinion 85-06 (rejecting a model of preparing pleadings while sending clients to court pro se). Relying on Illinois Supreme Court Rule 137 and Ricotta v. California (treating undisclosed ghostwriting of pro se filings as misleading the court), the Committee concludes the lawyer-mediator may not prepare the documents and let the spouses file them while professing to proceed pro se.

Currency note

This opinion was issued in 2005, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering; the Board of Governors affirmed it against 2010 Rules 1.2, 1.7, and 2.4. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion holds that a lawyer-mediator who drafts dissolution documents for two unrepresented spouses is representing both adverse parties in violation of Rule 1.7(a), and that the conduct cannot be salvaged as limited-scope drafting under Rule 1.2(c) when the spouses then file the papers and appear pro se. The Committee identifies the shift from neutral mediator to drafter-for-both-parties as the point at which the conflict arises, and treats undisclosed preparation of pro se filings as a separate problem under Rule 137 and Ricotta.

Common questions

Q: Can a divorce mediator draft the dissolution papers for both unrepresented spouses?

A: No. The opinion concludes that drafting the judgment of dissolution and related agreements for both spouses makes the lawyer the representative of both adverse parties, violating Rule 1.7(a).

Q: Does it matter that the spouses agreed and the divorce is uncontested?

A: No. The opinion follows ISBA Opinion 98-06 that even an uncontested divorce is litigation with a judgment entered against both parties, so a lawyer cannot represent both opposing sides regardless of consent.

Q: Can the lawyer just limit the scope to preparing the documents under Rule 1.2(c)?

A: Not on these facts. The opinion concludes the lawyer-mediator may not prepare the documents and let the spouses file them pro se, citing Rule 137 and Ricotta v. California on undisclosed ghostwriting.

Q: What is the normal, permissible role for a divorce mediator after settlement?

A: The opinion contrasts this conduct with a mediator who memorializes the agreement the parties reached, after which the parties' own lawyers draft the final documents to present to the court.

Background and rules framework

The opinion interprets Illinois Rule 1.7 (conflicts of interest, corresponding to Model Rule 1.7) and Rule 1.2(c) (limiting the scope of representation, corresponding to Model Rule 1.2), with the mediator role addressed by 2010 Rule 2.4 (lawyer serving as third-party neutral, corresponding to Model Rule 2.4). It also draws on Illinois Supreme Court Rule 137 and the Illinois Uniform Mediation Act. The analysis turns on the lawyer-mediator becoming the representative of both adverse spouses.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Illinois Rule 1.7 (conflicts of interest; opposing parties)
• Model Rule 1.2 / Illinois Rule 1.2(c) (limiting the scope of representation)
• Model Rule 2.4 (lawyer serving as a third-party neutral)

Other authorities:

• Illinois Supreme Court Rule 137 (signing of pleadings)
• Illinois Uniform Mediation Act, 710 ILCS 35/1 et seq. (mediation privilege)

Cases:

• Ricotta v. California, 4 F. Supp. 2d 961 (S.D. Cal. 1998), aff'd, 173 F.3d 861 (9th Cir. 1999), undisclosed ghostwriting of pro se filings

Other opinions cited:

• ISBA Advisory Opinions 92-05, 98-06, 849, 85-06 (mediator conflicts; uncontested divorce; limited-scope drafting)

See also

• ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
• CA COPRAC Op. 1984-080: Lawyer Acting as Mediator and Later Representation

Source

• Landing page: https://www.isba.org/ethics/opinions/0403