Could a dissolution lawyer draft the unrepresented spouse's answer or waiver?

Plain-English summary

In the first scenario, the client's lawyer proposed preparing the other spouse's entry of appearance, waiver of service, and pro forma answer, with a cover letter explaining the papers. The other spouse had no lawyer.

The opinion found this would inherently provide legal advice to the unrepresented spouse, who trusted the lawyer to protect that spouse's interests despite a statement that the lawyer did not represent the spouse. In the second scenario, the lawyer would draft the spouse's answer seeking separation while the client actually wanted dissolution. The opinion found both scenarios violated Rules 4-4.3 and 4-1.7.

Currency note

This 1994 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Did a statement that the lawyer represented only one spouse resolve the problem?

A: No. The opinion said the unrepresented spouse would still trust the lawyer to look after that spouse's interests.

Q: What was different in the separation scenario?

A: The lawyer would draft an answer for the other spouse seeking separation even though the client wanted dissolution.

Q: Which rules did the opinion identify?

A: Missouri Rules 4-4.3 and 4-1.7.

Background and rules framework

The opinion addressed the lawyer's proposed drafting for an unrepresented spouse in two marriage-dissolution scenarios and expressly cited Rules 4-4.3 and 4-1.7.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-4.3
• Missouri Rule 4-1.7

See also

• Missouri Informal Op. 940134: Unrepresented spouse's appearance
• Missouri Informal Op. 940161: Unrepresented spouse's appearance

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/940049/

Original opinion text

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

QUESTION: Situation 1. Attorney would prepare a Petition for a dissolution of marriage for Attorney´s client. Attorney would prepare an Entry of Appearance, Waiver of Service and pro forma Answer for the other part, who is not represented. This would be accompanied by a cover letter which would explain what the documents are. Situation 2. In a situation similar to Situation 1, the parties to the marriage want a separation agreement. In order to do this, Attorney´s client must file the Petition and the other party must file an Answer denying that the marriage is irretrievably broken. Attorney would draft the Answer for the other party. Attorney´s client actually wants a dissolution. ANSWER: Both situations would violate Rules 4–4.3 and 4–1.7 Situation 1. Attorney would inherently be providing legal advice to the unrepresented spouse. Although the unrepresented spouse is told that Attorney is not representing him or her, he or she is trusting Attorney to look after his or her interests. Situation 2. In addition to the problems cited above, Attorney would be violating Rule 4–4.3. Attorney would also be violating Rule 4–1.7 by assisting the unrepresented spouse to obtain a separation when the client actually wants a dissolution.