Must a lawyer alert the court to its apparent error in entering judgment against a pro se defendant whose affidavit arguably defeated summary judgment?

Plain-English summary

An attorney filed suit, and the defendant appeared pro se. Instead of an answer, the defendant filed a document detailing what he wanted in settlement. The attorney moved for default or summary judgment, and the court scheduled a hearing on presentment of judgment. At the hearing the defendant said he would file an affidavit later, and the court took the plaintiff's form of judgment pending the affidavit. The affidavit was filed timely and, in the attorney's view, controverted the complaint enough to preclude summary judgment, but the judge signed and filed the judgment anyway. The attorney asked whether he had to call the court's attention to the apparent error.

The committee concluded the attorney had no obligation to do so, finding the situation was not covered by any subparagraph of SCRA 1986, Rule 16-303. It relied on State ex rel. State Highway Commission v. Sherman, which holds that those who appear pro se are bound by the applicable procedural rules and enjoy no greater rights than those who employ counsel. The committee reasoned that if the defendant were represented, plaintiff's counsel would not be expected to help him try his case or meet procedural deadlines, citing a South Carolina opinion that a lawyer need not remind opposing counsel of a deadline if the client has instructed against granting extensions.

The committee noted a different answer might apply if the defendant had given plaintiff's counsel reason to believe he was relying on the attorney to protect his rights, citing Lyons v. Paul (where plaintiff's counsel obtained a default after the pro se defendant sent counsel papers that should have been filed in court). Here, by contrast, the defendant filed his own pleadings and made his own appearances, the attorney did nothing to expressly or impliedly mislead the court, and the matter was out of the attorney's hands when the court entered judgment.

Currency note

This opinion was issued in 1987, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rule 16-303). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). Treat this page as historical context, not current guidance.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: Must a lawyer correct the court when it enters judgment that may be erroneous against a pro se opponent?

A: The opinion concluded no; the committee found the situation was not covered by the candor-to-the-tribunal rule (Rule 16-303), so the lawyer had no obligation to alert the court.

Q: Does a pro se party get extra protection from the court or opposing counsel?

A: No. The committee relied on Sherman, holding that pro se litigants are bound by the same procedural rules and enjoy no greater rights than those who employ counsel.

Q: When might the answer be different?

A: The committee said a different answer might apply if the pro se party had given the lawyer reason to believe he was relying on the lawyer to protect his rights, as in Lyons v. Paul, which was not the case here.

Background and rules framework

The opinion applied SCRA 1986, Rule 16-303 (candor toward the tribunal), concluding the disclosure question fell outside its subparagraphs. The provision corresponds to current Model Rule 3.3.

Citations and references

Rules of Professional Conduct:

• Rule 16-303 (SCRA 1986) (candor toward the tribunal)

Cases:

• State ex rel. State Highway Commission v. Sherman, 82 N.M. 316, 481 P.2d 104 (1981), pro se litigants bound by procedural rules
• Lyons v. Paul, 321 S.W.2d 944 (Tex. Civ. App. 1959), counsel obtaining default where pro se defendant relied on counsel

Other opinions cited:

• South Carolina Bar Advisory Opinion 81-3: a lawyer need not remind opposing counsel of a deadline if the client instructed against extensions
• ABA/BNA Lawyers' Manual on Professional Conduct 71:112 (1987)

See also

• NM Ethics Op. 1987-11: Disclosing a Settlement Overpayment Error
• NM Ethics Op. 1987-2: Disclosing an Adverse Statute of Limitations

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-12.pdf

Original opinion text

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

Advisory Opinion 1987-12
An attorney asks whether he has an obligation to disclose to the court its apparent error under the following circumstances. The attorney filed suit on behalf of his client. The defendant chose to appear pro se. Instead of filing an answer, the defendant filed a document detailing what he wanted in settlement. The attorney filed a motion for default or for summary judgment. The court scheduled a hearing on the presentment of judgment. At the hearing, the defendant indicated that he would file an affidavit later. The court took plaintiff's form of judgment pending receipt of the affidavit. The affidavit was filed in timely fashion. In the attorney's opinion, the affidavit controverted the allegations of the complaint sufficiently to preclude summary judgment. Nonetheless, the judge signed and filed the judgment.
It is the opinion of the committee that the attorney has no obligation to call the court's attention to what may or may not be an apparent error in entering the judgment. This situation is not covered by any of the subparagraphs of SCRA 1986, Rule 16-303.
Moreover, in State ex rel. State Highway Commission v. Sherman, 82 N.M. 316, 319, 481 P.2d 104, 107 (1981), the court said, "Those who choose to plead or appear pro se are bound by all of the applicable procedural rules and enjoy no greater rights than those who employ counsel." If defendant were represented by counsel, we would not expect plaintiff's counsel to assist him in trying defendant's case or otherwise assist him in meeting procedural deadlines. See South Carolina Bar Advisory Opinion 81-3 (summarized at A.B.A./B.N.A. Lawyers' Manual on Professional Conduct 71:112 (1987)) (lawyer should not remind opposing counsel of time deadline if client has instructed lawyer not to grant any extensions).
We note that a different answer might be given if defendant had given plaintiff's counsel any reason to believe that defendant were relying on the attorney to protect defendant's rights. See Lyons v. Paul, 321 S.W.2d 944 (Tex. Civ. App. 1959). In that case, the defendant sent plaintiffs counsel her papers which should have been filed in court. Knowing that defendant was proceeding erroneously, plaintiff's counsel nonetheless obtained a default judgment. In contrast, in this attorney's case, defendant filed his own pleadings and made his own court appearances. The attorney did nothing to expressly or impliedly mislead the court. In fact, the matter was out of the attorney's hands at the time the court entered judgment.