In Kentucky, may a lawyer limit help to an indigent pro se litigant to drafting the initial pleadings, and may a legal services group publish self-help handbooks with pleading forms?

Plain-English summary

The questions came from a legal services organization that cannot satisfy all requests for assistance or always find volunteer pro bono counsel; the Committee noted its answers also apply to limited representation by private-practice lawyers. It answered both questions "Yes."

On Question 1, the opinion concluded that counsel may limit the undertaking to assistance in preparing the initial pleadings (complaint and answer), referencing Rule 1.2(c), with the overriding consideration being the recognition and satisfaction of indigent persons' legal needs rather than artificial barriers raised in the name of ethics. It tempered that holding with a concern that the court and the opponent not be misled about the extent of counsel's role: counsel should not aid a litigant in a deception that the litigant is unrepresented when in fact represented behind the scenes. The opinion reported that other states' committees treat preparation of a pleading (other than a previously prepared pro se form) as substantial assistance that must be disclosed to the court and the adversary, with the majority view that counsel's name should appear somewhere on the pleading even though assistance is limited. It also noted that counsel cannot be compelled to enter a general appearance merely because limited assistance was given, and that opinions in Rule 11 jurisdictions require counsel to investigate the facts so the pleading can be filed in good faith, a point the Committee viewed as first a question of procedural law for the courts.

On Question 2, the opinion concluded that including pro se forms in a handbook for distribution to laymen has not been viewed as the practice of law or as active and substantial assistance, and that First Amendment considerations are obvious, so it answered "Yes."

Currency note

This opinion was issued in 1991, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes that Rule 6.5 now addresses nonprofit and court-annexed limited legal services programs. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer help only with drafting a pro se litigant's pleadings?

A: Yes. The opinion concluded counsel may limit the undertaking to preparing the initial pleadings under Rule 1.2(c), with the goal of meeting indigent litigants' legal needs.

Q: Does the lawyer have to disclose that role to the court?

A: Generally yes for substantial assistance. The opinion reported the majority view that drafting a non-form pleading is substantial assistance that must be disclosed and that counsel's name should appear on the pleading.

Q: Can a legal aid group publish self-help handbooks with court forms?

A: Yes. The opinion concluded that including pro se forms in a handbook for laymen is not the practice of law or substantial assistance, citing obvious First Amendment considerations.

Background and rules framework

The opinion interprets KRPC 1.2(c) (limiting the scope of representation; Model Rule 1.2), reading it to permit limited-scope assistance to pro se litigants, subject to disclosing substantial behind-the-scenes help to the court and adversary. The Kentucky Bar Association notes current Rule 6.5 now addresses limited legal services programs.

Citations and references

Rules of Professional Conduct:

• MR 1.2(c) / KRPC 1.2(c) (limited scope of representation)

Other opinions cited:

• ABA Informal Op. 1414; Maine Op. 89 (1988); New York State Op. 613 (1990); New York City Op. 1987-2; Virginia Op. 1127 (1988)

See also

• AL Ethics Op. 2010-01: Unbundling & Ghostwriting
• KBA Ethics Op. E-345: Pro Hac Vice & Lay Reps
• KBA Ethics Op. E-385: Legal-Aid Referrals

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-343.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-343
Issued: January 1991

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky
Supreme Court has adopted various amendments, and made substantial
revisions in 2009. For example, Rule 6.5 addresses non-profit and court-annexed
limited legal services programs. Lawyers should consult the current version of
the rules and comments, SCR 3.130 (available at http://www.kybar.org), before
relying on this opinion.

Question 1:

May a lawyer limit his or her representation of an indigent pro se plaintiff
or defendant to the preparation of initial pleadings?

Answer 1:

Yes.

Question 2:

May a legal services organization prepare handbooks for distribution to
laymen concerning their legal rights, which contain forms of pleading and
practice for use pro se?

Answer 2:

Yes.

References:

ABA Informal Op. 1414; Maine Op. 89 (1988); New York State Op. 613
(1990); New York City Op. 1987-2; Virginia Op. 1127 (1988).
OPINION

These questions come to the Committee from a legal services organization. The
organization cannot satisfy all requests for assistance, and cannot always obtain alternative
(volunteer) pro bono counsel. We note, however, that our answer would also apply to
limited representation provided by lawyers in private practice.
The Bar committees that have considered Question 1 are in agreement that counsel
may limit his or her undertaking to providing assistance in the preparation of initial
pleadings (complaint & answer). Cf. Rule 1.2(c). The overriding consideration should be
the recognition and satisfaction of the legal needs of indigent persons. Artificial barriers
should not be set up in the name of legal ethics.
On the other hand, the same committees voice concern that the Court and the
opponent not be misled as to the extent of the counsel's role. Counsel should not aid a
litigant in a deception that the litigant is not represented, when in fact the litigant is
represented behind the scenes. Accordingly, the opinions from other states hold that the
preparation of a pleading, other than a previously prepared form devised specifically for

use by pro se litigants, constitutes substantial assistance that must be disclosed to the Court
and the adversary. Some opinions suggest that it is sufficient that the pleading bear the
designation "Prepared by Counsel." However, the better and majority view appears to be
that counsel's name should appear somewhere on the pleading, although counsel is limiting
his or her assistance to the preparation of the pleading.
It should go without saying that counsel should not hold forth that his or her
representation was limited, and that the litigant is unrepresented, and yet continue to
provide behind the scenes representation. On the "flip side," the opponent cannot
reasonably demand that counsel providing such limited assistance be compelled to enter an
appearance for all purposes. A contrary view would place a higher value on tactical
maneuvering than on the obligation to provide assistance to indigent litigants.
Opinions that have issued in states having Rule 11 or an equivalent take the
position that counsel has an obligation to adequately investigate the facts so that the
pleading can be filed in good faith, even though counsel is limiting his or her
representation. We are inclined to the same view, but conclude that this is first and
foremost a question of procedural law to be answered by the courts.
With the reservations noted we answer Question 1 in the affirmative.
Question 2 does not appear to involve the same considerations. The inclusion of
forms for use by pro se litigants in a handbook intended for distribution to laymen has not
been viewed as the practice of law or as active and substantial assistance implicating any of
the above considerations. The First Amendment considerations are also obvious. For these
reasons, we answer Question 2 in the affirmative.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.