Can a legal aid lawyer draft pleadings and coach an indigent person to proceed pro se without appearing as counsel of record?

Plain-English summary

The inquiry came from Carolina Legal Services, a legal aid program that, because of heavy caseloads, often could not formally represent eligible indigent clients. Across several family-law hypotheticals (a separated spouse seeking alimony and custody, a father answering a custody complaint, and a domestic-violence victim seeking a 50B protective order), the program asked how far a lawyer could go in helping an unrepresented person prepare and present a case while the person proceeded pro se.

The opinion concluded that, as the comment to Rule 3.1 makes clear, an attorney may counsel nonlawyers who wish to proceed pro se, including providing assistance in drafting legal documents such as pleadings, and that the Rules do not require the attorney to appear as counsel of record when giving such drafting assistance. It added that attorneys may make available court-approved or their own form pleadings, and that it makes no ethical difference whether the lawyer or the litigant actually drafts the documents, so long as the lawyer states clearly that she is not representing the person. The opinion further stated that nothing in the Rules prohibits a lawyer from volunteering advice on strategy, tactics, or litigation techniques, and answered yes to filling out a 50B domestic-violence complaint for a litigant to file pro se.

The committee's closing note observed that, although such voluntary assistance appears permissible without an appearance, attorney-client relationships would generally form, so the Rules concerning confidentiality and conflict of interest would apply. The opinion offered no view on possible malpractice liability but stated that a lawyer acting in this capacity would be required by Rule 6 to act competently.

Currency note

This opinion was issued in 1991, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 a lawyer draft pleadings for someone who will then file them pro se?

A: Yes. The opinion concluded that, under the comment to Rule 3.1, a lawyer may counsel a person proceeding pro se and assist in drafting legal documents, including pleadings, without appearing as counsel of record.

Q: Can the lawyer also advise on courtroom strategy and tactics?

A: Yes. The opinion stated that nothing in the Rules prohibits a lawyer from volunteering advice on strategy, tactics, or techniques of litigation for a person proceeding pro se.

Q: Does providing this kind of help create any ongoing duties?

A: The opinion noted that an attorney-client relationship would generally form, so the confidentiality and conflict-of-interest rules would apply, and Rule 6 would require the lawyer to act competently.

Background and rules framework

The opinion rested on the comment to North Carolina Rule 3.1 (aiding the unauthorized practice of law, corresponding to Model Rule 5.5), which recognizes that counseling a person who proceeds pro se is permissible, and on Rule 6 (competence, corresponding to Model Rule 1.1). The committee framed the assistance as voluntary help to an unrepresented person rather than an undertaking to appear as counsel, while cautioning that an attorney-client relationship and its attendant duties could still arise.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 3.1 and comment (aiding the unauthorized practice of law; counseling pro se litigants)
• North Carolina Rule 6 (competence)
• MR 5.5 (unauthorized practice); MR 1.1 (competence)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-114/

Original opinion text

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

Inquiry #1:

Carolina Legal Services (CLS) represents indigent clients who are unable to afford private attorneys. Each client must meet income eligibility requirements in addition to having a type of case which fits within CLS's priority guidelines. All of CLS's attorneys carry a heavy caseload and the private bar is not always able to do enough through its own pro bono efforts to help meet all the legal needs of the indigent citizens in the community.

First Hypothetical:

An indigent person comes to CLS. She and her husband have recently separated and she has no job, no money and cannot afford to hire an attorney. Due to her marital situation, she has ample grounds for an alimony claim, which could be accomplished through a divorce from bed and board. She would like to file some sort of action, possibly a divorce from bed and board, to obtain some temporary alimony, child custody and child support. Unfortunately, CLS cannot represent her.

Can a CLS attorney draft a complaint seeking divorce from bed and board for the woman, explain to her how to file it, have the woman sign her name on all the pleadings, go over courtroom procedure with her, but allow her to represent herself in court pro se and not list herself as the attorney of record?

Opinion #1:

Yes, as the comment to Rule 3.1 makes clear, an attorney may counsel nonlawyers who wish to proceed pro se. In so doing an attorney may provide assistance in the drafting of legal documents, including pleadings. When an attorney provides such drafting assistance, the Rules of Professional Conduct do not require the attorney to make an appearance as counsel of record.

Inquiry #2:

Are there court approved pleading forms that CLS attorneys can give the woman to sign and file pro se?

Opinion #2:

If such forms exist, attorneys may make them available to individuals wishing to proceed pro se.

Inquiry #3:

Are the ethical considerations the same if CLS attorneys make their own form pleadings available to the indigent woman to sign and file pro se?

Opinion #3:

See the answer to question #1.

Inquiry #4:

Assuming a CLS attorney can do the above, is there a difference, ethically, as to which party, the attorney or the woman, actually drafts the pleadings or fills out any court approved forms which may exist, so long as the attorney clearly states that she is not representing the woman, but is merely helping her with her lawsuit?

Opinion #4:

No.

Inquiry #5:

Second Hypothetical:

A man comes into CLS's office. He has just been served with a custody complaint by his ex-wife. CLS cannot take the case. The man is willing to consent to his ex-wife's having custody but wants to make sure that his rights are protected as far as visitation, etc.

Can a CLS attorney draft an answer for him without signing the pleading if she lets him know that she is not representing him and that he must proceed pro se?

Opinion #5:

See the answer to question #1 above.

Inquiry #6:

If a CLS attorney is not the attorney of record, how much leeway would such an attorney have in advising the man on how to represent himself in court if he and his ex-wife are unable to settle the custody matter? Can the attorney instruct him on which witnesses to call, what evidence to present and how to give an opening and closing argument? Can the attorney fill out subpoenas for him or instruct him on how to fill them out himself?

Opinion #6:

Nothing in the Rules of Professional Conduct prohibits a lawyer from volunteering advice regarding strategy, tactics or techniques of litigation. As was mentioned above, an attorney volunteering assistance to an individual wishing to proceed pro se may offer assistance in drafting documents or completing forms.

Inquiry #7:

Third Hypothetical:

A woman consults CLS about stopping the physical abuse that her husband frequently subjects her to. She has already taken out an assault warrant, but wants to proceed pro se with a 50B Domestic Violence Protective Complaint. No CLS attorney can represent her in court.

Can a CLS attorney fill out the 50B complaint for her based on the information she has given and have her proceed pro se?

Opinion #7:

Yes.

Note: While it appears ethically permissible for an attorney to volunteer assistance of the sort described above without appearing as counsel of record, it is noted that attorney-client relationships would generally be formed under such circumstances and the Rules of Professional Conduct, particularly those concerning confidentiality and conflict of interest would apply. The Ethics Committee offers no opinion on the question of whether attorneys undertaking to offer such voluntary assistance might be liable for malpractice but suggests that any lawyer acting in such capacity would be required by Rule 6 to act competently in offering advice and assistance.