Can a Texas lawyer sell selected clients a fill-in-the-blanks 'divorce kit' so they can represent themselves in an uncontested divorce for a reduced fee?

Plain-English summary

A Houston attorney submitted a "Divorce Kit for Do-it-Yourselfers" and the General Counsel of the State Bar asked the Committee what action should be taken regarding the lawyer's stated plan to use and market the kits. Under the plan, the attorney would select clients he believed intelligent enough to represent themselves in non-children, non-property, uncontested divorces, fill in the blanks on the petition, waiver, and judgment, and furnish the completed instruments with written instructions for filing, obtaining signatures, and appearing in court pro se. His charge would be $110, instead of his regular $350 for handling such a divorce in full.

The Committee concluded that the plan was improper. It observed that the plan probably violated at least the spirit, and probably the letter, of several Canons, including DR 1-102(A)(5) (conduct prejudicial to the administration of justice), EC 2-2 (educational programs should benefit the public rather than obtain publicity or employment for particular lawyers), and EC 2-16 (the profession must receive adequate fees, and habitually charging small fees as a means of advertising). Rather than rest on those provisions, the Committee placed its objection on EC 3-7, concerning the Bar's attitude toward self-representation: while any person has the right to represent himself, the legal profession should help the public recognize legal problems and understand why it may be unwise to act for themselves in matters having legal consequences. The Committee believed the kit practice would encourage rather than discourage self-representation, place an undue burden on clerks and courts, and in many instances result in improper representation of a client.

Currency note

This opinion was issued in 1973, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The scope of a lawyer's representation, including limited-scope arrangements, is now addressed by Texas Rule 1.02 and ABA Model Rule 1.2, and conduct prejudicial to the administration of justice by Texas Rule 8.04 and Model Rule 8.4(d). 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 Treat this page as historical context, not current guidance.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: Was the divorce-kit plan permitted?

A: No. The Committee concluded the plan was improper, resting its objection on EC 3-7 because the kit would encourage rather than discourage self-representation.

Q: Which provision did the Committee rely on?

A: It rested its objection on EC 3-7 (the Bar's attitude toward self-representation), while noting the plan probably also offended DR 1-102(A)(5), EC 2-2, and EC 2-16.

Q: What problems did the Committee foresee?

A: It believed the kit practice would encourage self-representation, put an undue burden on clerks and courts, and in many instances result in improper representation of a client.

Background and rules framework

The opinion interprets EC 3-7 (the profession's responsibility to help the public understand why self-representation may be unwise) of the former Texas Code of Professional Responsibility, and references DR 1-102(A)(5), EC 2-2, and EC 2-16. The modern analogs include Texas Rule 1.02 and ABA Model Rule 1.2 (scope of representation) and Texas Rule 8.04 and Model Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation), as the modern analog
• MR 8.4 (misconduct; conduct prejudicial to the administration of justice), as the modern analog
• DR 1-102(A)(5); EC 3-7; EC 2-2; EC 2-16 (former Texas Code of Professional Responsibility)

See also

• TX Ethics Op. 635: Limited-Scope Advice on Self-Help Forms for Pro Se Litigants

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-364/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_364.pdf

Original opinion text

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

QUESTION PRESENTED

The Professional Ethics Committee has been furnished correspondence from Attorney David J. Nagle of Houston, Texas, submitting a "Divorce Kit for Do-it-Yourselfers", and the Committee has also received a request of the General Counsel of the State Bar of Texas, to recommend what action is to be taken in connection with the avowed purpose of such attorney to use and market such "kits."

The attorney proposes to furnish such "kits," in a discriminating selection, to such of his clients, as he believes intelligent enough to represent himself in presenting his cause to the Court in non-children, non-property and non-contested cases.

The attorney would fill in the blanks in the petition, waiver and judgment; furnish such completed instruments to the client with written instructions as to filing, obtaining signatures and filing waiver, appearing in Court to represent himself and present his case to the Courts for judgment.

The attorney's charge would be $110.00, instead of his regular charge of $350.00 for completely handling such a divorce case.

The committee is of the sense that such plan probably violates at least the spirit, and probably the letter, of such Canons, among others, as:
a. Canon 1-DR1-102-(a)-5 Χ Conduct prejudicial to the administration of justice.
b. Canon 2-EC2-2 Χ Educational program should be motivated by a desire to benefit the
public rather that to obtain publicity or employment for particular lawyers.
c. Canon 2-EC-2-16 Χ Profession to receive adequate fees in order to remain a viable force-and habitually charging small fees as a means of advertising.
The Committee, however, instead of placing its objections to "kit" upon the construction of the above Canons, is of the view that "kit" plan directly violates Canon 3-EC-3-7 concerning the Bar's attitude toward a person representing himself. The Canon readily recognizes that any person has the right to represent himself, but, "Even so, the legal profession should help members of the public to recognize the legal problems and to understand why it may be unwise for them to act for themselves in matters having legal consequences."

The Committee believes the "kit" practice would encourage rather than discourage self- representation; put an undue burden on the Clerks and Courts, and probably, in many instances, result in improper representation of a client.

Tex. Comm. On Professional Ethics, Op. 364 (1973)