May a California attorney provide limited consulting services to a pro per litigant, including drafting pleadings the client will file, making special appearances on motions, or appearing as 'associate counsel' for a status conference where trial counsel must appear?

Currency note

This opinion was issued in the mid-1990s, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 1-300 corresponds to current Rule 5.5; former Rule 3-110 corresponds to current Rule 1.1; former Rule 3-310 corresponds to current Rule 1.7; former Rule 3-700(A)(2) corresponds to current Rule 1.16(d). California has since added explicit authority for limited-scope representation (e.g., California Rule of Court 3.36) that did not exist when this opinion was written. 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered an attorney engaged by individuals representing themselves in propria persona to give legal advice and prepare papers the client would sign and file. The attorney would not be the attorney of record; court appearances, calendaring, filings, and deadlines remained the client's responsibility. The attorney sought guidance on three scenarios: limited consulting and pleading preparation; special appearances on motions the client had filed; and appearing as "associate counsel" at a status conference where trial counsel must appear.

On the first scenario (consulting and pleading preparation), the committee identified the attorney-client relationship as ordinarily created by contract, express or implied (Kelly v. Ning Yng Venev. Asso.), and identified that the attorney's authority is limited to the subject matter for which the attorney is retained (Grudger v. Manton; Nicol v. Davis). The committee concluded that there is nothing per se unethical in limiting a professional engagement to consulting and counseling a self-represented litigant, provided the client is fully informed and expressly consents. The committee identified its earlier LACBA Formal Opinion 432 (which held that drafting an answer for a pro per litigant constitutes legal services creating an attorney-client relationship) and LACBA Formal Opinion 449 (no ethical proscription against legal advice over the phone). The committee identified ABA Model Rule 1.2(c) as guidance allowing a lawyer to limit the objectives of representation with client consent.

The committee identified the resulting duties: confidentiality under Business and Professions Code section 6068(e); conflict avoidance under Rule 3-310 (requiring extensive record-keeping); competence under Rule 3-110 (eliciting sufficient information to advise); and advertising restrictions under Rule 1-400. The committee identified that an attorney may not assist the unauthorized practice of law by preparing papers for someone other than the party directly involved in the litigation (Rule 1-300(A)).

On the abandonment issue, the committee identified Rule 3-700(A)(2) as continuing to require reasonable steps to avoid foreseeable prejudice, due notice, opportunity for replacement counsel, and provision of client files at the end of the limited engagement.

On the second scenario (special appearances), the committee identified the rule that a party may appear in person or by an attorney, but not both, unless approved by the court (Epley v. Califro; People v. Bloom; Nicol v. Davis). The committee concluded that an attorney's special appearance to argue motions, with disclosure to and approval by the court, is not per se unethical.

On the third scenario (status conference as "associate counsel"), the committee identified the potential violation of section 6068(d) by misleading the court as to the attorney's true status and control of the case. The committee identified the appearance as a tacit representation that the attorney would substitute in before trial. Citing Anderson v. City R. Co., the committee identified the risk that the court would find the client had ratified the attorney's becoming counsel of record. The committee identified that the attorney should make clear to the court the scope of representation.

In a footnote, the committee identified that the limited-representation arrangement is not available where the client is a corporation, since a corporation can appear only through counsel (Himmel v. City of Burlingame).

Common questions

Q: Can a California lawyer agree to advise and prepare pleadings for a pro per litigant without becoming counsel of record?

A: Per the opinion, yes, with full written disclosure and the client's express consent to the limited scope.

Q: Does this create an attorney-client relationship?

A: Per the opinion, yes. The committee identified that the resulting relationship triggers confidentiality (section 6068(e)), conflicts avoidance (Rule 3-310), competence (Rule 3-110), and advertising compliance (Rule 1-400).

Q: Can the limited-scope attorney make a special appearance on a motion?

A: Per the opinion, yes, when the limited nature is disclosed to and approved by the court and the attorney complies with the court's rules and procedures.

Q: Can the limited-scope attorney appear at a status conference where trial counsel must appear?

A: Per the opinion, doing so without intending to become counsel of record may violate Business and Professions Code section 6068(d) by misleading the court. The attorney should make the scope of representation clear to the court.

Q: Does the limited representation eliminate withdrawal duties at the end of the engagement?

A: Per the opinion, no. Rule 3-700(A)(2) requires reasonable steps to avoid foreseeable prejudice, due notice, opportunity for replacement counsel, and provision of client files.

Q: Can a lawyer use this arrangement for a corporate client?

A: Per the opinion (footnote), no, since a corporation can appear only through an attorney (Himmel v. City of Burlingame).

Background and rules framework

The opinion interprets former California Rules of Professional Conduct 1-300(A) (no assistance with unauthorized practice), 1-400 (advertising), 3-110 (competence), 3-310 (conflicts), and 3-700(A)(2) (withdrawal duties), with Business and Professions Code sections 6068(d) (duty of candor) and 6068(e) (confidentiality). ABA Model Rule 1.2(c) is referenced as guidance.

Citations and references

Rules of Professional Conduct (former):

• California Rule 1-300(A) (assisting unauthorized practice)
• California Rule 1-400 (advertising)
• California Rule 3-110 (competence)
• California Rule 3-310(C) (conflicts)
• California Rule 3-700(A)(2) (withdrawal)
• ABA Model Rule 1.2(c) (limiting representation with client consent)

Statutes:

• California Business and Professions Code sections 6068(d), 6068(e), 6105

Cases:

• Anderson v. City R. Co., 9 Cal.App.2d 205 (1935), ratification of attorney as counsel of record
• Epley v. Califro, 49 Cal.2d 849 (Cal. 1958), no dual representation absent court approval
• Grudger v. Manton, 21 Cal.2d 537 (Cal. 1943), attorney's authority limited to retained subject
• Himmel v. City of Burlingame, 169 Cal.App.2d 97 (1959), corporation must appear by counsel
• Kelly v. Ning Yng Venev. Asso., 2 Cal.App. 460 (1905), creation of attorney-client relationship
• Nicol v. Davis, 90 Cal.App. 337 (1928)
• People v. Bloom, 48 Cal.3d 1194 (Cal. 1989)

Other opinions cited:

• LACBA Formal Opinion 432 (December 17, 1984)
• LACBA Formal Opinion 449 (March 1988)
• Cal. State Bar Formal Opinion 1984-83

See also

• LACBA Opinion 502: Limited-Scope Representation of Pro Per Litigant
• LACBA Opinion 482: Representations Made to Opposing Counsel and the Court

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010937