Can a lawyer for one divorcing spouse prepare an answer or waiver for the unrepresented spouse, or represent both spouses in the divorce suit as an intermediary?

Plain-English summary

In an amicable divorce, only a filed suit can produce a divorce order or a court-ordered property distribution, and the question is whether the lawyer for one spouse may smooth the process by preparing the other, unrepresented spouse's pleadings. The committee notes its consistent prior position (CPR 121, CPR 125, CPR 296, and RPC 165): a plaintiff's lawyer may not send the defendant a form answer admitting the complaint or an "acceptance of service and waiver" form, because doing so gives legal advice to an unrepresented person and produces a pleading that appears to represent the adverse party's position. The inquiry asks whether then-existing Rule 2.2 (lawyer as intermediary between clients with potentially conflicting interests) changes that.

On acting as an intermediary and appearing as counsel of record for both spouses, the opinion concludes no: one lawyer may not appear in court as legal counsel for opposing parties no matter how friendly the lawsuit (Rule 1.7, cmt. [8]). On drafting both parties' pleadings and handing an unsigned pleading to the spouse who will appear pro se, the opinion again concludes no: that spouse may be confused about the extent of the lawyer's representation and must be treated as an unrepresented person under Rule 4.3. On preparing a waiver or answer for the unrepresented spouse to sign and file pro se, the opinion concludes no, reaffirming CPR 121, CPR 125, CPR 296, and RPC 165.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on the bar against giving legal advice to an unrepresented person and against one lawyer representing both sides of a contested matter in court. The opinion holds that a lawyer for one spouse may not prepare the unrepresented spouse's pleadings or waiver, even in an amicable divorce, and may not appear in court for both parties.

Per the opinion, a spouse proceeding pro se must be treated as an unrepresented person under Rule 4.3, and the prior CPR and RPC opinions barring preparation of an answer or waiver for the adverse party remain controlling. (The opinion was issued under the then-existing Rule 2.2 on lawyer-as-intermediary; that rule was later eliminated from the Model Rules, so verify the current North Carolina rules before relying on the intermediary framing.)

Common questions

Q: Can a lawyer for one spouse prepare the other spouse's answer admitting the divorce complaint?

A: No. The opinion concludes that preparing a form answer admitting the allegations, or an acceptance-of-service-and-waiver form, for an unrepresented spouse is prohibited, citing CPR 121, CPR 125, CPR 296, and RPC 165.

Q: Can one lawyer represent both spouses in the divorce suit as an intermediary?

A: No. The opinion concludes one lawyer may not appear in court as legal counsel for opposing parties no matter how friendly the lawsuit (Rule 1.7, cmt. [8]).

Q: What if the lawyer just hands the other spouse an unsigned pleading to file pro se?

A: Still no. The opinion concludes the pro se spouse may be confused about the lawyer's role and must be treated as an unrepresented person under Rule 4.3.

Q: Does treating the spouse as pro se cure the problem?

A: The opinion does not allow preparing the pleading. It concludes the unrepresented spouse must be treated under Rule 4.3, and the lawyer may not prepare a waiver or answer for that spouse to sign and file.

Background and rules framework

The opinion interprets Rule 1.7 and its comment [8] (a lawyer may not represent opposing parties in the same litigation, corresponding to Model Rule 1.7) and Rule 4.3 (duties to an unrepresented person, corresponding to Model Rule 4.3). It addresses then-existing Rule 2.2 (lawyer as intermediary), since eliminated from the Model Rules, and reaffirms the prior North Carolina opinions CPR 121, CPR 125, CPR 296, and RPC 165.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NC Rule 1.7, cmt. [8] (no representation of opposing parties in court)
• MR 4.3 / NC Rule 4.3 (dealing with an unrepresented person)
• MR 2.2 / NC Rule 2.2 (lawyer as intermediary; since eliminated from the Model Rules)

Other opinions cited:

• NC CPR 121, CPR 125, CPR 296: a plaintiff's lawyer may not send the defendant a form answer or waiver.
• NC RPC 165: a lawyer may not prepare a pleading that appears to represent the adverse party's position.

See also

• NC State Bar 2009 FEO 12: Preparation of Documents for an Unrepresented Adverse Party
• NC State Bar 2015 FEO 2: Preparing a Foreclosure-Notice Waiver for an Unrepresented Borrower
• NC State Bar 2004 FEO 10: Preparation of a Deed When Representing the Buyer

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2002-formal-ethics-opinion-6/

Original opinion text

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

Inquiry #1:

A lawsuit must be filed to obtain a divorce order and certain marital property can only be divided by court order. However, other issues between divorcing spouses are often resolved by agreement without filing suit. Frequently, the parties resolve their differences amiably, through formal mediation or otherwise, and filing suit to obtain the divorce or a property distribution order is a mere formality.

The Ethics Committee has been asked, on a number of occasions, whether a lawyer representing one spouse in an amiable marital dissolution may prepare for the other, unrepresented, spouse simple responsive pleadings that admit the allegations of the complaint. It is argued that, if this practice is allowed, the expense of additional legal counsel will be avoided and the proceedings will be expedited. The committee has consistently held, however, that a lawyer representing the plaintiff may not send a form answer to the defendant that admits the allegations of the divorce complaint nor may the lawyer send the defendant an "acceptance of service and waiver" form waiving the defendant's right to answer the complaint. CPR 121, CPR 125, CPR 296. The basis for these opinions is the prohibition on giving legal advice to a person who is not represented by counsel. See also RPC 165 (lawyer may not prepare a pleading that appears to represent the position of the adverse party).

Rule 2.2 allows a lawyer to act as an intermediary between clients with potentially conflicting interests provided certain conditions are met. Rule 2.2 seems to permit the conduct prohibited in the ethics opinions cited in the preceding paragraph. If the conditions in Rule 2.2 are satisfied, may a lawyer act as the intermediary for divorcing spouses and, in this capacity, prepare the divorce pleadings and appear as counsel of record for both parties?

Opinion #1:

No, one lawyer may not appear in court as legal counsel for opposing parties no matter how "friendly" the lawsuit. See Rule 1.7, Cmt. [8].

Inquiry #2:

Assume that the conditions for intermediation between divorcing spouses are satisfied and that the lawyer has been representing both spouses on non-litigation matters. May the lawyer draft the pleadings for both parties but give an unsigned pleading to one party (presumably the defendant) who will appear in the litigation pro se ?

Opinion #2:

No. The pro se client may be confused about the extent of the lawyer's representation in the litigation. The pro se client must be treated as an unrepresented person under Rule 4.3

Inquiry #3:

A lawyer represents only the husband in a domestic dissolution. However, the wife agrees to the divorce and the parties are on amiable terms. The wife is unrepresented and does not want to incur the expense of hiring a lawyer to represent her. May the lawyer prepare a waiver or an answer admitting the allegations of the divorce complaint and give the pleading to the wife to sign and file pro se ?

Opinion #3:

No. See CPR 121, CPR 125, CPR 296, and RPC 165.