Can a divorce lawyer prepare a separation agreement and negotiate settlement directly with the other spouse when that spouse has no lawyer?

Plain-English summary

A lawyer represented a client with matrimonial problems whose spouse refused to obtain counsel. The committee was asked two questions: whether the lawyer could prepare a separation agreement the parties had negotiated without counsel and transmit it to the unrepresented spouse for signature, and whether, if the matter proceeded to litigation with the spouse appearing pro se, the lawyer could discuss settlement with that spouse. The committee answered both in the affirmative, subject to conditions.

The committee started from the principle that the Code does not forbid all communication with an unrepresented adverse party; what it forbids is the giving of advice. EC 7-18 and DR 7-104(A)(2) permit a lawyer to deal directly with an unrepresented person but bar giving that person any advice other than the advice to secure counsel where the person's interests conflict with the client's. Drawing on long-standing ABA authority (ABA 58 (1931); ABA Inf. 1255 (1972); ABA Inf. 1140 (1970)), the committee distinguished proper communication from impermissible attempts to convince the adverse party to pursue a course of conduct.

On the first question, the committee agreed with the ABA: where the lawyer had no hand in the negotiation and acted merely as scrivener of an agreement the parties negotiated, transmitting it to the unrepresented spouse for signature was not improper. The committee said the lawyer should take special care that the agreement accurately reflected the client's understanding and was drawn in terms the unrepresented party could understand (EC 7-10). If the agreement was not in the client's best interest the lawyer should so advise the client (EC 7-8), and if the client insisted, the lawyer could withdraw or proceed on the client's instructions. The lawyer could not use the client as an intermediary to convey advice the lawyer was barred from giving directly.

On the second question, the committee allowed more flexibility than the ABA had to that point. It reasoned that once a matter is in litigation the public's interest in the proper administration of justice is engaged, and a lawyer faced with a pro se opponent may have no choice but to act as advocate and enter the negotiation process actively; a more restrictive rule would deny effective counsel to the represented party and condemn pro se cases to determination without hope of settlement. Throughout, the lawyer was to guard against overreaching and must not mislead a party untutored in the law, and could be advocate and adviser to only one of the contesting parties (N.Y. State 258 (1972)). Both questions were answered in the affirmative.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (dealing with an unrepresented person is now governed by 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 a lawyer prepare a separation agreement for an unrepresented spouse to sign?

A: Under this opinion, yes, where the lawyer acted only as scrivener of an agreement the parties negotiated themselves. The committee said the lawyer should make sure the agreement reflects the client's understanding and is drawn in terms the unrepresented spouse can understand.

Q: Can the lawyer negotiate settlement directly with a spouse who is representing themselves?

A: Yes, in a litigated matrimonial matter. The committee held that a lawyer facing a pro se opponent may have to act as advocate and enter the negotiation actively, while never misleading the unrepresented party.

Q: What is the line the lawyer cannot cross?

A: Giving advice. The committee held the lawyer may communicate with the unrepresented spouse but may not advise that spouse on any course of conduct other than to obtain counsel, and may not use the client as a conduit to do so indirectly.

Background and rules framework

The opinion applies DR 7-104(A)(2) and EC 7-18, which bar a lawyer from giving an unrepresented person any advice other than to secure counsel where that person's interests conflict with the client's, together with EC 7-5, 7-7, 7-8 and 7-10 on the bounds of advocacy and the duty to deal fairly. The current Model Rule analogue is Rule 4.3 (dealing with an unrepresented person); withdrawal where a client insists on a disadvantageous agreement implicates Rule 1.16.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person)
• MR 1.16 (declining or terminating representation)
• NY EC 7-5, EC 7-7, EC 7-8, EC 7-10, EC 7-18; DR 7-104(A)(2)

Other opinions cited:

• ABA 58 (1931): the line between proper communication and trying to get an unrepresented adverse party to agree to a divorce
• ABA Inf. 1255 (1972); ABA Inf. 1140 (1970): preparing documents for an unrepresented adverse party's signature
• N.Y. State 258 (1972): a lawyer may be advocate and adviser to only one contesting party

See also

• NY State Bar Op. 477: Telling an adverse party in an estate to get their own lawyer
• NY State Bar Op. 483: Suing opposing counsel for defamation mid-case

Source

• Landing page: https://nysba.org/opinion-478/