Can a plaintiff's divorce lawyer prepare and give the unrepresented defendant an 'Acceptance of Service and Waiver' form that waives the right to answer and to notice of trial?

Plain-English summary

The inquiry concerned a Wake County "Acceptance of Service and Waiver" form used in uncontested divorces. Beyond accepting service of the summons and complaint, the form had the defendant waive service by an officer, the right to file an answer or other pleadings, the right to notice of the time and place of trial, and the right to a jury, and consent to the court proceeding immediately to trial. The plaintiff's lawyer asked whether he could prepare and make the form available to the defendant, whether only on the defendant's request, and whether he could let his client deliver it.

The opinion concluded no. Citing CPRs 121 and 125, it reasoned that providing a form waiving the right to answer and to be notified of trial has the same effect as providing an answer for the defendant, which the plaintiff's lawyer may not do. The opinion also concluded the lawyer may not let his client, the plaintiff, deliver such a form to the defendant. It noted that the lawyer may send the defendant a form solely for acceptance of service.

Currency note

This opinion was issued in 1981 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 principle it applied, limiting a lawyer's dealings with an unrepresented adverse party, 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 Treat this page as historical context, not current guidance.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 give the defendant a waiver-of-answer form?

A: No. The opinion concluded that giving the defendant a form waiving the right to answer and to notice of trial is the same as providing an answer for the defendant, which the plaintiff's lawyer may not do.

Q: Does it matter if the defendant asks for the form?

A: The opinion held the lawyer may not send or directly make available the waiver form, and may not have the plaintiff deliver it, without carving out an exception for a defendant's request.

Q: Is any form permitted?

A: Yes. The opinion noted the lawyer may send the defendant a form solely for acceptance of service, citing CPR 121, Question 1.

Background and rules framework

The opinion applied the former Code of Professional Responsibility's limits on a lawyer's contact with an unrepresented opposing party, a principle now captured in Model Rule 4.3. The analysis turned on equating a waiver of the right to answer and to notice with drafting the defendant's pleading, an act the plaintiff's lawyer cannot perform for the adverse party.

Citations and references

Rules of Professional Conduct:

• North Carolina Code of Professional Responsibility (dealing with an unrepresented adverse party)
• MR 4.3 (dealing with unrepresented person)

Other opinions cited:

• North Carolina CPR 121 and CPR 125 (plaintiff's lawyer may not prepare the defendant's answer)

See also

• NC Ethics Op. CPR 121: plaintiff's divorce lawyer sending papers to an unrepresented defendant
• NC Ethics Op. CPR 125: preparing the opposing spouse's answer in an uncontested divorce

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-296/

Original opinion text

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

Inquiry:

Attorney A practices domestic relations law in Wake County. The Clerk of the Domestic Courtroom for Wake County District Court has available a document entitled "Acceptance of Service and Waiver" which is frequently used for uncontested divorces. The form states that the defendant, or defendant's attorney, accepts service of the summons and acknowledges receipt of a copy or the summons and a copy of the complaint. The form further states that the defendant waives service by an officer and further waives the right to file an answer or any other pleadings, the right to be notified of the time and place of the trial of the action, and waives the right to trial by jury, and further agrees that the court may proceed immediately with the trial of the action in question.

In view of CPR's 121 and 125, may Attorney A representing a plaintiff in a divorce or other action ethically prepare this form and make it available to a defendant? May he do so only at the request of the defendant? May he allow his client, the plaintiff, to provide such a form to the defendant?

Opinion:

No. Attorney A may not send to or directly make available to a defendant the "Acceptance of Service and Waiver" form. To provide the form waiving the right to answer and to be notified of the date of trial has the same effect as providing an answer for the defendant. See CPR's 121 and 125. Similarly, Attorney A may not allow his client, the plaintiff, to provide such a form to the defendant. See CPR 125. Of course, Attorney A may send to defendant a form solely for acceptance of service. See CPR 121, Question 1.