Which pleadings or filings may a North Carolina lawyer prepare for an unrepresented opposing party in a pending civil proceeding, and which may the lawyer not?

Plain-English summary

Responding to several inquiries, the committee consolidates the prior rules and opinions on when a lawyer may prepare a pleading or filing for an unrepresented opposing party. The opinion is limited to documents attendant to a proceeding pending before a tribunal (Rule 1.0(n)) and to agreements resolving the dispute, such as releases or settlement agreements; it does not address business-transaction closing documents or matters not before a tribunal.

The governing rule is Rule 4.3(a): in dealing with an unrepresented person, a lawyer may not give legal advice other than to secure counsel where the lawyer knows or reasonably should know the person's interests conflict, or may conflict, with the client's. Comment [2] clarifies that Rule 4.3 does not bar negotiating a transaction or settling a dispute with an unrepresented person, or preparing documents that require the person's signature, so long as the lawyer explains that the lawyer represents an adverse party. The committee surveys CPR 296, CPR 121, RPC 165, 2009 FEO 12, and 2002 FEO 6, which together hold that some single-party filings may be drafted by the opposing lawyer but an answer or a waiver of the right to answer may not.

From this the committee draws guiding principles. A lawyer may not draft a filing for an unrepresented opposing party if doing so is tantamount to giving legal advice, and must avoid Rule 4.4(a) tactics that have no substantial purpose but to embarrass, delay, or burden. The opinion lists six considerations (whether significant rights are waived, whether the filing solely represents the unrepresented party's position, whether it gives that party a benefit, whether the legal consequences are clear from the document, whether it exceeds what the client's objectives require, and whether a neutral must sign). Applying them, a lawyer may prepare an acceptance of service, a confession of judgment, a settlement agreement, a release, an accurate non-waiving affidavit, and a dismissal pursuant to settlement, after giving the party an opportunity to review and correct and, it is recommended, a written disclosure of who the lawyer represents. A lawyer should not prepare a waiver of the right to file an answer, an answer, or a waiver of exemptions; a waiver of notice of hearing may be prepared only if the lawyer is satisfied the party is not relinquishing significant rights without a corresponding benefit.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the dividing line the committee draws is whether preparing the filing is tantamount to giving the unrepresented opposing party legal advice. Per the opinion, filings that do not cross that line, an acceptance of service, a confession of judgment, a settlement agreement, a release, an accurate affidavit that does not waive the affiant's rights, and a dismissal pursuant to settlement, may be prepared, while an answer, a waiver of the right to file an answer, and a waiver of exemptions may not.

The opinion frames a self-test for the lawyer: if a disinterested lawyer would conclude the unrepresented party should not sign without advice of counsel, or the lawyer cannot articulate why relying on the lawyer's draft is in the unrepresented party's interest, the lawyer may not ask the party to sign. The opinion also states the party must be given the chance to review and correct the document, and recommends a written disclosure naming the lawyer, identifying which party the lawyer represents, and stating the lawyer cannot give the unrepresented party legal advice except to seek independent counsel. The opinion notes its lists are not exhaustive.

Common questions

Q: Can a North Carolina lawyer prepare an acceptance of service for an unrepresented opposing party?

A: Yes. The opinion lists an acceptance of service among the filings a lawyer may prepare, because it can give the party a benefit (avoiding personal service) and does not amount to legal advice.

Q: Can the lawyer prepare the opposing party's answer to the complaint?

A: No. The opinion holds a lawyer should not prepare an answer, a waiver of the right to file an answer, or a waiver of exemptions for an unrepresented opposing party, consistent with 2002 FEO 6.

Q: What factors decide whether a particular document is off-limits?

A: The opinion lists six considerations, including whether significant rights are waived, whether the document solely represents the unrepresented party's position, whether it confers a benefit, whether its legal consequences are clear from the document, whether it exceeds the client's objectives, and whether a neutral must sign.

Q: Does the lawyer have to tell the unrepresented party anything before they sign?

A: The opinion requires giving the party an opportunity to review and correct the document, and recommends a written disclosure naming the lawyer, stating which party the lawyer represents, and that the lawyer cannot advise the party except to seek independent counsel.

Background and rules framework

The opinion interprets Rule 4.3 (Model Rule 4.3, dealing with unrepresented persons). Rule 4.3(a) bars giving legal advice, other than to secure counsel, to an unrepresented person whose interests conflict or may conflict with the client's; Rule 4.3(b) bars stating or implying the lawyer is disinterested. Comment [2] permits negotiating and preparing signature documents so long as the lawyer discloses the adverse representation. Rule 4.4(a) (Model Rule 4.4) bars means with no substantial purpose but to embarrass, delay, or burden a third person. "Tribunal" is defined in Rule 1.0(n).

The committee harmonizes its prior authority: CPR 121, CPR 296, RPC 165, 2002 FEO 6 (lawyer may not prepare the opposing party's answer), 2004 FEO 10, and 2009 FEO 12 (lawyer may prepare an affidavit and confession of judgment but not a waiver of exemptions).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.3 / NC Rule 4.3(a), 4.3(b) and cmt. [2] (dealing with unrepresented persons)
• Model Rule 4.4 / NC Rule 4.4(a) (means to embarrass, delay, or burden third persons)
• NC Rule 1.0(n) (definition of "tribunal")

Other opinions cited:

• CPR 121, CPR 296: a lawyer may not furnish an acceptance of service and waiver form waiving the right to answer (overruled in part by RPC 165).
• RPC 165: a lawyer may draft and solicit execution of a confession or consent judgment without advising the adverse party or feigning disinterest.
• 2002 FEO 6: a plaintiff's lawyer may not prepare the answer for an unrepresented adverse party.
• 2009 FEO 12: a lawyer may prepare an affidavit and confession of judgment, but not a waiver of exemptions, for an unrepresented adverse party.

See also

• NC State Bar 2015 FEO 2: Foreclosure-Notice Waiver for an Unrepresented Borrower
• Florida Bar Op. 79-7: Preparing Pleadings for an Unrepresented Party
• Florida Bar Op. 68-46: Asking an Unrepresented Party to Sign a Deed
• DC Bar Op. 330: Unbundled (Limited-Scope) Legal Services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2015-formal-ethics-opinion-1/

Original opinion text

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

Background:

The Ethics Committee recently received several inquiries on whether a lawyer may prepare a pleading or other filing for an unrepresented opposing party in a civil proceeding. There are a number of rules and ethics opinions that address this issue, but not collectively. The purpose of this opinion is to provide guiding principles for when a lawyer may prepare a pleading or other filing for an unrepresented opposing party.

This opinion is limited to the drafting of pleadings and filings attendant to a proceeding that is currently pending before a tribunal (as that term is defined in Rule 1.0(n)), and to the drafting of any agreement between the parties to resolve the issues in dispute in the proceeding including a release or settlement agreement. The principles do not address the drafting of documents necessary to close a business transaction or other matters that are not the subject of a formal proceeding before a tribunal. “Pleading or filing” is used throughout the opinion to include any document that is filed with the tribunal and any agreement between the parties to settle their dispute and terminate the proceeding.

Survey of Rules and Opinions:

Rule 4.3(a) provides that, in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not give legal advice to the person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.

Comment [2] to Rule 4.3 clarifies that Rule 4.3 does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. As long as the lawyer explains that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter and may prepare documents that require the unrepresented person's signature.

CPR 296, which was adopted in 1981 under the Code of Professional Responsibility which was then in effect, opines that a lawyer may not send to or directly make available to an unrepresented defendant an acceptance of service and waiver form waiving the right to answer and to be notified of the date of trial. However, a lawyer may send to a defendant a form solely for acceptance of service. See CPR 121.

RPC 165, adopted in 1993, states that, “[i]n order to accomplish her client's purposes, the attorney may draft a confession of judgment for execution by the adverse party and solicit its execution by the adverse party so long as the attorney does not undertake to advise the unrepresented party concerning the meaning or significance of the document or to state or imply that she is disinterested.” The opinion continues:

[a]lthough previous ethics opinions, CPRs 121 and 296, have ruled that it is unethical for a lawyer to furnish consent judgments to unrepresented adverse parties for their consideration and execution, there appears to be no basis for such a prohibition when the lawyer is not furnishing a document which appears to represent the position of the adverse party such as an answer, and the lawyer furnishing a confession of judgment or consent judgment does not undertake to advise the adverse party or feign disinterestedness. CPRs 121 and 296 are therefore overruled to the extent they are in conflict with this opinion.

2009 Formal Ethics Opinion 12 rules that a lawyer may prepare an affidavit and confession of judgment for an unrepresented adverse party provided the lawyer explains who he represents and does not give the unrepresented party legal advice; however, the lawyer may not prepare a waiver of exemptions for the adverse party.

2002 Formal Ethics Opinion 6 provides that the lawyer for the plaintiff may not prepare the answer to a complaint for an unrepresented adverse party to file pro se. The basis for this holding is also the prohibition on giving legal advice to a person who is not represented by the lawyer.

Guiding Principles

The survey of the existing opinions demonstrates that some pleadings or filings that solely represent the interests of one party to a civil proceeding may be prepared by a lawyer representing the interests of the opposing party.

However, because of the prohibitions in Rule 4.3, a lawyer may not draft a pleading or filing to be signed solely by an unrepresented opposing party if doing so is tantamount to giving legal advice to that person. A lawyer may draft a pleading or filing to be signed solely by an unrepresented opposing party if the document is necessary to settle the dispute with the lawyer’s client and will achieve objectives of both the lawyer’s client and the unrepresented opposing party. Pursuant to Rule 4.4(a), which prohibits the use of “means” that have no substantial purpose other than to embarrass, delay, or burden a third person, when presenting a pleading or filing for execution, the lawyer must avoid using tactics that intimidate or harass the unrepresented opposing party.

In applying these guiding principles, a lawyer must avoid the overreaching which is tantamount to providing legal advice to an unrepresented opposing party. The lawyer should consider whether (1) the rights, if any, of the unrepresented opposing party will be waived, lost, or otherwise adversely impacted by the pleading or filing, and the significance of those rights; (2) the pleading or filing solely represents the position of the unrepresented opposing party (e.g., an answer to a complaint); (3) the pleading or filing gives the unrepresented opposing party some benefit (e.g., acceptance of service to avoid personal service by the sheriff at the person’s home or work place); (4) the legal consequences of signing the document are not clear from the document itself (e.g., the hidden consequences of signing a waiver of right to file an answer in a divorce proceeding has hidden consequences); (5) the pleading or filing goes beyond what is necessary to achieve the client’s primary objectives; or (6) the pleading or filing will require the signature of a judge or other neutral who can independently evaluate the pleading or filing. If a disinterested lawyer would conclude that the unrepresented opposing party should not agree to sign the pleading or filing under any circumstances without advice of counsel, or the lawyer is not able to articulate why it is in the interest of the unrepresented opposing party to rely upon the lawyer’s draft of the document, the lawyer cannot properly ask the unrepresented opposing party to sign the document.

Opinion:

Applying the guidelines and considerations above leads to the conclusion that a lawyer may prepare the following pleadings or filings for an unrepresented opposing party: an acceptance of service, a confession of judgment, a settlement agreement, a release of claims, an affidavit that accurately reflects the factual circumstances and does not waive the affiant’s rights, and a dismissal with (or without) prejudice pursuant to settlement agreement or release. However, prior to obtaining the signature of the unrepresented opposing party on the pleading or filing, the person must be given the opportunity to review and make corrections to the pleading or filing. It is recommended that the pleading or filing include a written disclosure that indicates the name of the lawyer preparing the document, and specifies that the lawyer represents the other party and has not and cannot provide legal advice to the unrepresented opposing party except the advice to seek representation from independent counsel.

A lawyer should not prepare on behalf of an unrepresented opposing party a waiver of right to file an answer to a complaint, an answer to a complaint, or a waiver of exemptions. A waiver of notice of hearing should only be prepared for the unrepresented opposing party if the lawyer is satisfied that, upon analysis of the considerations indicated above, the lawyer is not asking the unrepresented opposing party to relinquish significant rights without obtaining some benefit.

Neither of the above lists of pleadings or filings is intended to be exhaustive. Before determining whether a pleading or filing may be prepared for an unrepresented opposing party, the lawyer must conclude that she is able to comply with the guiding principles above.