Can a lawyer agree in advance to only draft the pleadings in a divorce case and let the client proceed pro se from there?

Plain-English summary

An attorney prepared pleadings for a client to use in a pro se dissolution of marriage but, by agreement with the client, did not enter an appearance or otherwise take part in the proceeding. The committee was asked whether a lawyer may agree with the client to limit the representation to preparing pleadings without appearing or taking part in the litigation.

Finding no rule, ethical consideration, or prior opinion directly on point, the committee drew on the most pertinent indirect authority: the rules on an attorney's withdrawal from litigation already underway. Its reasoning was that if an attorney may, on certain conditions, withdraw from representation at a given stage, then he may also agree in advance, on similar conditions, that his representation will terminate at that stage. Rule 7-101(a)(1) and (2) require an attorney not to fail to seek the client's lawful objectives and not to fail to carry out the employment contract, but Rule 7-101(a)(2) allows withdrawal as permitted under Rule 2-110.

The committee turned to Rule 2-110(c) on permissive withdrawal, which allows a request to withdraw in matters before a tribunal where the client "knowingly and freely assents," and to Rule 2-110(a)(2), which bars withdrawal until the attorney has taken reasonable steps to avoid foreseeable prejudice to the client. Here, those steps would at least include making certain the client fully understands the merits of his position, the position the other party is likely to take, the procedures of a trial (including a valid prove-up), and the consequences of the attorney's not appearing or acting. The committee concluded a lawyer may agree in advance to limit his employment to drafting pleadings, leaving the client to handle the case through the pleading and trial stages, provided the client gives fully informed consent and the lawyer takes the Rule 2-110(a)(2) steps to avoid foreseeable prejudice.

Currency note

This opinion was issued in 1983, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rule 1.2(c) and (d) with its Comments [6] to [8], and Rule 1.16 with its Comments [9] to [10]), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer agree to only prepare the pleadings and not appear in the case?

A: The opinion concluded yes, by prior agreement limiting the representation to drafting pleadings, provided the client gives fully informed consent and the lawyer takes reasonable steps to avoid foreseeable prejudice to the client's rights.

Q: What did the committee rely on, given no rule was directly on point?

A: Per the opinion, the committee reasoned from the withdrawal rules: if a lawyer may withdraw at a stage of litigation on certain conditions, he may agree in advance, on similar conditions, that the representation will end at that stage (Rules 7-101(a)(2) and 2-110).

Q: What must the lawyer make sure the client understands?

A: The committee said the client must understand the merits of his position, the other party's likely position, trial procedures including a valid prove-up, and the consequences of the lawyer not appearing or acting in the proceeding.

Background and rules framework

The opinion applied former Illinois Code Canons 2 and 7, Rule 7-101(a)(1) and (2) (zeal and carrying out the employment, subject to permitted withdrawal), and Rule 2-110(a)(2) and (c) (avoiding foreseeable prejudice and permissive withdrawal with the client's knowing assent). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.2(c) (limiting the scope of representation with informed consent) and 1.16 (declining or terminating representation), corresponding to ABA Model Rules 1.2 and 1.16.

Citations and references

Rules of Professional Conduct:

• Illinois Code Canons 2, 7; Rule 7-101(a)(1), (2); Rule 2-110(a)(2), (c) (applied in the opinion)
• Illinois RPC 1.2(c), (d) with Comments [6] to [8]; Rule 1.16 with Comments [9] to [10] (2010 equivalents per the Board's affirmation)
• MR 1.2 (scope of representation, including limited-scope under 1.2(c)); MR 1.16 (declining or terminating representation)

See also

• ABA Formal Op. 07-446: Ghostwriting for Pro Se Litigants
• ABA Formal Op. 472: Limited-Scope Clients and Contact

Source

• Landing page: https://www.isba.org/ethics/opinions/849