Can a lawyer mail a confession of judgment to the unrepresented opposing party for signature so child support can be paid through the clerk of court?

Plain-English summary

A lawyer represented the custodial parent of minor children. The noncustodial parent had agreed to pay child support in the guideline amount, and the lawyer and client wanted the support paid through the clerk of superior court. The inquiry asked whether the lawyer could mail a confession of judgment to the unrepresented opposing party for execution and submission to the clerk for entry of judgment.

The opinion concluded that the lawyer could. Under Rule 7.4(a), a lawyer may communicate directly with an adverse party not known to be represented by counsel on the matter at issue. The lawyer may draft a confession of judgment for the adverse party to execute and solicit its execution, provided, under Rule 7.4(b) and (c), the lawyer does not undertake to advise the unrepresented party about the document's meaning or significance and does not state or imply that the lawyer is disinterested. The opinion stated the lawyer should advise the adverse party that the lawyer represents her client, cannot give the adverse party legal advice, and that the adverse party should seek another lawyer's advice about whether to sign. The opinion explained that, while earlier opinions CPR 121 and CPR 296 had ruled it unethical to furnish consent judgments to unrepresented adverse parties, there is no basis for that prohibition when the lawyer is not furnishing a document that appears to represent the adverse party's position (such as an answer) and does not undertake to advise the party or feign disinterestedness. It overruled CPR 121 and CPR 296 to the extent they conflicted.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 send a confession of judgment to an unrepresented opposing party?

A: Yes. The opinion concluded that a lawyer may draft and mail a confession of judgment to an unrepresented adverse party for execution under Rule 7.4, subject to the limits on advising and disinterestedness.

Q: What must the lawyer tell the unrepresented party?

A: The opinion said the lawyer should advise the party that the lawyer represents her own client, cannot give the party legal advice, and that the party should seek another lawyer's advice about whether to sign.

Q: What may the lawyer not do?

A: The opinion held the lawyer may not advise the unrepresented party about the document's meaning or significance and may not state or imply that the lawyer is disinterested.

Q: How does this differ from sending a consent judgment under the older opinions?

A: The opinion distinguished documents that appear to represent the adverse party's position, like an answer. Finding no basis to bar a confession of judgment where the lawyer neither advises nor feigns neutrality, it overruled CPR 121 and CPR 296 to that extent.

Background and rules framework

The opinion applied North Carolina Rule 7.4, which governed communication with adverse and unrepresented parties and corresponds to Model Rule 4.3 (dealing with an unrepresented person): subsection (a) permitted direct communication with an unrepresented adverse party, and subsections (b) and (c) barred giving advice and implying disinterestedness. The opinion reconciled this with the earlier consent-judgment opinions CPR 121 and CPR 296, overruling them to the extent of any conflict.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person)
• North Carolina Rule 7.4(a), (b), (c)

Statutes:

• N.C. Gen. Stat. §50-13.4(c) (child-support guidelines; referenced for the support amount)

Other opinions cited:

• North Carolina CPR 121 and CPR 296 (consent judgments to unrepresented parties; overruled to the extent of conflict)

See also

• NC Ethics Op. 2002 Formal Op. 6: providing a pleading to an unrepresented adverse party
• NC Ethics Op. 2009 Formal Op. 12: preparing documents for an unrepresented party
• NC Ethics Op. 2015 Formal Op. 1: preparing filings for an unrepresented opposing party

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-165/

Original opinion text

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

Inquiry:

Attorney represents the custodial parent of minor children. The noncustodial spouse has agreed to pay child support in an amount equal to that determined by application of the child support guidelines promulgated pursuant to G.S. §50-13.4(c). Attorney and custodial parent wish to have the child support payable through the clerk of superior court. May the attorney mail a confession of judgment to the unrepresented opposing party for execution and subsequent submission to the clerk of Superior Court for endorsement and entry of judgment?

Opinion:

Yes. A lawyer may communicate directly with an adverse party who is not known to be represented by counsel in regard to the matter at issue. Rule 7.4(a). In 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. Rule 7.4(b) and (c). The attorney should advise the adverse party that she represents her client, that she cannot give legal advice to the adverse party, and that the adverse party should seek the advice of another attorney concerning whether he should sign the confession of judgment. Although 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.