In an uncontested divorce, what may the plaintiff's lawyer send the unrepresented defendant, and can the defendant help pay the plaintiff's fee?

Plain-English summary

The inquiry asked, in a divorce action with the plaintiff's consent and no minor children (except where noted), what the plaintiff's lawyer could ethically send the defendant.

The opinion concluded: (1) the lawyer may send the defendant the summons, a copy of the summons, and a copy of the complaint for acceptance of service; (2) the lawyer may not also send a form-type answer the defendant could use to admit the complaint's allegations (EC 7-18; DR 7-104(A)(2)); (3) the lawyer may not send an answer admitting the allegations and suggest the defendant sign, verify, and return it to speed up the divorce (EC 7-18; DR 7-104(A)(2)); (4) the lawyer may not draft a consent order on custody and support and send it with the summons and complaint, suggesting the defendant sign all the papers and return them to avoid engaging counsel (EC 7-18; DR 7-104(A)(2)); and (5) the lawyer may permit the defendant to pay the balance of the plaintiff's fee in an uncontested divorce to enable the plaintiff to go forward, if the lawyer has no role in inducing the defendant to pay the fee.

Currency note

This opinion was issued in 1977 under North Carolina's former Code of Professional Responsibility (the DR/EC framework), before the State Bar replaced the Code with the Rules of Professional Conduct (adopted 1985) and before the 2003 revisions to those Rules. The provision it applied (DR 7-104(A)(2) on giving advice to an unrepresented person, with EC 7-18) corresponds to today's Model Rule 4.3. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can the plaintiff's lawyer send the defendant the summons and complaint for acceptance of service?

A: Yes. The opinion concluded the lawyer may send the defendant the summons and a copy of the summons and complaint for acceptance of service.

Q: Can the lawyer send the unrepresented defendant an answer to sign?

A: No. The opinion concluded the lawyer may not send a form or draft answer admitting the allegations, or suggest the defendant sign and return it, because that improperly advises an unrepresented adverse party (DR 7-104(A)(2); EC 7-18).

Q: Can the defendant help pay the plaintiff's legal fee?

A: Yes, with a limit. The opinion concluded the defendant may pay the balance of the fee in an uncontested divorce if the lawyer had no role in inducing the payment.

Background and rules framework

The opinion applied the former North Carolina DR 7-104(A)(2) on giving advice to an unrepresented person, together with EC 7-18 (corresponding to today's Model Rule 4.3). The analysis turned on the difference between mere service papers, which may be sent, and drafting answers or consent orders that steer an unrepresented adverse party away from obtaining counsel.

Citations and references

Rules of Professional Conduct:

• North Carolina DR 7-104(A)(2); EC 7-18 (Code of Professional Responsibility; dealing with an unrepresented person)
• MR 4.3 (dealing with unrepresented persons)

See also

• NC Ethics Op. RPC 15: contacting an unrepresented party
• NC Ethics Op. RPC 12: disclosing to fix a title mistake

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-121/

Original opinion text

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

Inquiry:

Is it ethical for the attorney representing the plaintiff in a divorce action, with the plaintiff's consent, to:

1. Send to the defendant the summons, together with copy of summons and copy of complaint, for acceptance of service in a divorce action where no minor children are involved?

Opinion: Yes.

2. Send to defendant summons, together with copy of summons and copy of complaint, for acceptance of service and, in addition thereto, send to defendant a form type answer that may be used in admitting the allegations of the complaint where no children are involved?

Opinion: No. EC 7-18; DR 7-104(A) (2).

3. Send to defendant summons for acceptance of service, together with copy of summons and copy of complaint, and send to defendant an answer admitting the allegations of the complaint, suggesting that she may sign it, appearing in her own person, and verify it and return it to be filed to thus speed up the granting of a divorce where no children are involved?

Opinion: No. EC 7-18; DR 7-104(A) (2).

4. Draft a consent order concerning custody and support of children and sent to defendant in a divorce action summons for acceptance of service, together with copy thereof and copy of complaint and consent order concerning custody and support of children, suggesting that defendant, if the defendant finds the papers acceptable, may sign all of the papers and return them to be filed without the expense of engaging counsel?

Opinion: No. EC 7-18; DR 7-104(A) (2).

5. Permit the defendant to pay the balance of his fee in an uncontested divorce action to enable plaintiff to go forward and obtain a divorce?

Opinion: Yes. If the attorney has no role in inducing the defendant to pay such fee.