In Tennessee, must a lawyer who prepares a pleading for a pro se litigant disclose that involvement on the document?

Plain-English summary

This opinion addressed whether a lawyer who agrees to prepare pleadings for a pro se litigant, but declines to represent the litigant further, must disclose that involvement on the pleadings. The committee drew on Tennessee Formal Ethics Opinion 85-F-83 (1985), which had cited ABA Informal Opinion 1414 (1978) for the proposition that extensive undisclosed participation by a lawyer that permits a litigant to appear falsely to be without substantial professional assistance is improper.

The opinion observed that the Disciplinary Rule underlying the ABA opinion no longer applied in Tennessee, but that the Rules of Professional Conduct likewise barred conduct involving dishonesty, fraud, deceit, or misrepresentation under RPC 8.4(c) and barred assisting a client in conduct the lawyer knows or reasonably should know is criminal or fraudulent under RPC 1.2(d). It concluded that a Tennessee lawyer could not engage in extensive undisclosed participation in litigation on behalf of a pro se litigant, because doing so enabled the false appearance of being without substantial professional assistance.

The opinion drew a line for limited assistance. It concluded that an attorney could prepare a single pleading, such as a complaint, demand for arbitration, request for reconsideration, or other document needed to toll a statute of limitations, administrative deadline, or other proscriptive rule, without disclosing the attorney's name, so long as the attorney did not continue undisclosed assistance. It reasoned that requiring disclosure for such limited assistance would tend to discourage attorneys from helping litigants protect their legal rights, and that such limited assistance did not violate RPC 8.4(c).

Currency note

The Board of Professional Responsibility has vacated Formal Ethics Opinion 2007-F-153; the official source page labels it "Vacated by the Board of Professional Responsibility." The source does not state the date of vacatur. Because the opinion has been vacated, treat this page as historical context only, not as current guidance, and do not rely on its conclusions. For Tennessee's treatment of attorney assistance to self-represented litigants, consult current rules and any later authority.

Common questions

Q: Did this opinion let a Tennessee lawyer ghostwrite a pleading without disclosure?

A: As originally issued, only in a narrow situation: the opinion concluded a lawyer could prepare a single pleading needed to toll a statute of limitations or other deadline without disclosing the lawyer's name, provided the lawyer gave no further undisclosed assistance. The opinion has since been vacated.

Q: What did the opinion say about extensive undisclosed help?

A: The opinion concluded that a lawyer could not engage in extensive undisclosed participation on behalf of a pro se litigant, because it permitted the false appearance that the litigant was without substantial professional assistance, contrary to RPC 8.4(c).

Q: Can this opinion be relied on today?

A: No. The Board has vacated it. The page is retained for research and historical context only.

Background and rules framework

The opinion interpreted Tennessee RPC 8.4(c) (Model Rule 8.4) on conduct involving dishonesty, fraud, deceit, or misrepresentation, and RPC 1.2(d) (Model Rule 1.2(d)) on assisting a client in criminal or fraudulent conduct. It built on Tennessee Formal Ethics Opinion 85-F-83 and ABA Informal Opinion 1414, which had treated extensive undisclosed lawyer participation as improper under the former Code of Professional Responsibility's DR 1-102(A)(4).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / Tennessee RPC 8.4(c) (dishonesty, fraud, deceit, misrepresentation)
• Model Rule 1.2(d) / Tennessee RPC 1.2(d) (assisting criminal or fraudulent conduct)

Other opinions cited:

• Tennessee Formal Ethics Opinion 85-F-83 (1985) (undisclosed participation by a lawyer)
• ABA Informal Ethics Opinion 1414 (1978) (extensive undisclosed participation is improper)

See also

• Tennessee Op. 2005-F-151: Pro Se Clinic Limited-Scope Representation
• ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
• Colorado Op. 101: Unbundling and Limited-Scope Representation

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2007-f-153

Original opinion text

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

2007-F-153 - Vacated*

*Vacated by the Board of Professional Responsibility

FORMAL ETHICS OPINION 2007-F-153

The propriety of lawyers assisting pro se litigants in the preparation of pleadings wherein they fail to identify their assistance on the pleadings.

Pro se litigants often request the assistance of attorneys in the preparation of pleadings. In these circumstances, the attorneys may agree to prepare the pleadings, but decline to further representthe litigants. The issue here is whether these attorneys must disclose on any such pleadings their involvement in the preparation of the pleadings.

In a 1985 Formal Opinion, the Board was confronted with a County Attorney drafting and preparing a pleading on behalf of the County Court Clerk in a lawsuit against the County Executive.The name of the County Attorney did not appear on the pleadings. Tennessee Formal Ethics Opinion 85-F-83 (1985) the Board therein cited with approval ABA Informal Ethics Opinion1414(1978). This ABA Informal Opinion states: "Extensive undisclosed participation by a lawyer ... that permits the litigant falsely to appear as being without substantial professional assistance is improper." This ABA Informal Opinion specifically identifies as improper the preparation of jury instructions, memoranda of authorities and other documents submitted to the courts without disclosing the name of the attorney on the pleadings. The basis of the ABA Informal Opinion is DR 1-1 02(A)( 4) which prohibits a lawyer from engaging in dishonesty, fraud, deceit, or misrepresentation. It was deemed as dishonest for a litigant to indicate that he/she is unrepresented when that is not the case. The failure of an attorney to disclose his/her involvement in such circumstances was further considered to be a misrepresentation and therefore, improper.

The Disciplinary Rule cited in the ABA Informal Opinion is no longer applicable in Tennessee. The new Rules of Professional Conduct, however, also bar attorneys from "engag(ing) in conduct involving dishonesty, fraud, deceit, or misrepresentation" [RPC 8.4(c)]. The Rules of Professional Conduct also prohibit attorneys from "assist(ing) a client in conduct the lawyer knows or reasonably should know is criminal or fraudulent ... " [RPC 1.2(d)]. Thus, an attorney in Tennessee may not engage in extensive undisclosed participation in litigation in behalf of a pro se litigant as doing so permits and enables the false appearance of being without substantial professional assistance. This prohibition does not extend to providing undisclosed assistance to a truly pro se litigant. Thus, an attorney may prepare a leading pleading including, but not limited to, a complaint, or demand for arbitration, request for reconsideration or other document required to toll a statute of limitations, administrative deadline or other proscriptive rule, so long as the attorney does not continue undisclosed assistance of the pro se litigant. The attorney should be allowed, in such circumstances, to elect to have the attorney's assistance disclosed or remain undisclosed. To require disclosure for such limited, although important, assistance would tend to discourage the assistance of litigants for the protection of the litigants' legal rights. Such limited assistance is not deemed to be in violation of RPC 8.4(c).

In conclusion, an attorney may prepare pleadings for a pro se litigant without disclosing the name of the attorney on the pleading in circumstances where doing so allows the pro se litigant to protect his or her claim or matter from being barred by a statute of limitation, administrative rule or other proscriptive rule where the assisting attorney will not provide further assistance. An attorney may not prepare pleadings and other legal documents to assist a pro se litigant in the conduct of his or her litigation where doing so creates the false impression that the litigant is without substantial legal assistance.

This 23rd day of March, 2007.

ETHICS COMMITTEE:

David L. Mason, Chair

W. Ferber Tracy

Thomas S. Scott, Jr.

William C. Bovender

APPROVED AND ADOPTED BY THE BOARD