Can a lawyer advise a client, prepare the pleadings, and file documents while presenting the client as pro se, but refuse to appear in court for them?

Plain-English summary

An attorney representing Chapter 7 bankruptcy debtors had tried to avoid attending the first meeting of creditors, sought a waiver from clients and then the court, and, when the court ordered him to appear, did not, and was held in contempt. He then changed his method: he advised clients, prepared their petitions as if the clients were pro se, filed them while telling the court the petitioners were pro se, and had the debtors attend the meeting of creditors and hearings without counsel, while he still filed motions to avoid liens and to amend schedules and asked the court to notify him when discharge orders were entered, with his fees listed on the schedules.

The committee held this improper. Under Canons 6 and 7 and former Rules 6-101 and 7-101, a lawyer must handle a matter with adequate preparation, be punctual in professional commitments, and treat all involved in the legal process with courtesy. Having failed to appear and been held in contempt, the lawyer's later scheme of advising and preparing documents while sending the client to court alone fell far short of those obligations; the committee reasoned the client could not be considered competently represented or adequately prepared for what might arise in court without the lawyer present, and that the arrangement was a plan to avoid the lawyer's punctual fulfillment of commitments and showed a lack of courtesy to the court.

The committee also invoked former Rule 5-101: a lawyer must not accept employment where his own financial, business, property, or personal interests may affect his judgment, and noted the lawyer appeared to be putting his dispute with the court ahead of the client's interests, a conflict the client cannot waive. It distinguished its Opinion 849, which had allowed a lawyer to limit representation in a dissolution to preparing pleadings without appearing; the material difference here was that the lawyer remained of record while trying to limit his employment. Quoting People ex rel. Attorney General v. Beattie on the lawyer's dual duty to client and court, the committee concluded a lawyer who cannot represent the client in all aspects of the case should obtain co-counsel or decline the employment.

Currency note

This opinion was issued in December 1985, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.2(c) and (d), 1.16(d), 3.3, and 8.4(d)), while cautioning that the specific standards referenced may differ from the 2010 Rules. Limited-scope and ghostwriting practice has developed considerably since 1985. 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 prepare a client's filings, present the client as pro se, and not appear in court?

A: The opinion concluded no on these facts; doing so to avoid the lawyer's own appearances, while remaining of record, fell short of the duties owed to the client and the court.

Q: Why did the committee see a conflict of interest?

A: Per the opinion, the lawyer appeared to put his dispute with the court (which had held him in contempt) ahead of the client's interests, under former Rule 5-101, a conflict the client cannot waive.

Q: How is this different from limiting representation to preparing pleadings (Opinion 849)?

A: The committee distinguished Opinion 849 because there the lawyer did not appear of record; here the lawyer remained of record while trying to limit the scope of his employment.

Background and rules framework

The opinion applied former Illinois Code Rules 6-101 and 7-101 (competence, diligence, and duties to the legal process) and Rule 5-101 (personal-interest conflicts), with Canons 6 and 7. The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.2(c) and (d) (scope and limits of representation), 1.16(d) (duties on withdrawal), 3.3 (candor to the tribunal), and 8.4(d) (conduct prejudicial to the administration of justice), corresponding to the ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 6-101 and 7-101 (competence, diligence, duties to the process, applied in the opinion)
• Illinois Code Rule 5-101 (personal-interest conflicts)
• Illinois RPC 1.2(c), 1.2(d), 1.16(d), 3.3, 8.4(d) (2010 equivalents per the Board's affirmation)
• MR 1.2 (scope of representation); MR 3.3 (candor to the tribunal); MR 8.4(d) (conduct prejudicial to justice)

Cases:

• People ex rel. Attorney General v. Beattie, 137 Ill. 553 (Ill. 1891), the lawyer's dual duty to client and court

Other opinions cited:

• ISBA Opinion 849: limiting representation to preparing pleadings without appearing of record

See also

• ABA Formal Op. 07-446: Ghostwriting for Pro Se Litigants
• MA Bar Ethics Op. 98-1: Ghostwriting for Pro Se Litigants
• ISBA Ethics Op. 04-03: Mediator Drafting Divorce Docs

Source

• Landing page: https://www.isba.org/ethics/opinions/8506