Can a legal aid office give blank legal forms to pro se litigants it does not represent, without violating the rules on candor to a tribunal?

Plain-English summary

A Legal Services office near a General District Court is often approached by pro se litigants who are not eligible for its representation and who request forms. The committee was asked whether the office's attorneys may ethically provide forms to these unrepresented litigants when no legal advice is given.

The committee draws on LEO 1592, which held that where a court requires drafters of pleadings to disclose their identity, undisclosed drafting could violate the former rules now found in Rule 3.4(d) (disobeying a tribunal's rule) and Rule 8.4(c) (misrepresentation). But LEO 1592 involved attorneys drafting pleadings for litigants. Here, the staff would merely provide blank forms. The committee adopts the distinction the Bar's Unauthorized Practice of Law Committee drew in UPL Op. 73: providing forms is not the practice of law, while completing them would be. Applying that line, the committee concludes that providing blank forms, so long as no assistance is given in completing them, is not the kind of ghost-writing that requires disclosure to the court, and does not violate Rule 3.4(d) or Rule 8.4(c).

Currency note

This opinion was issued in 2002. Virginia's rules on candor, unauthorized practice, and limited-scope assistance may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, distributing blank legal forms without helping complete them or giving advice is not the practice of law and not undisclosed ghost-writing, so it does not implicate Rule 3.4(d) or Rule 8.4(c). The committee ties the result to the line drawn in UPL Op. 73 between providing forms and completing them, and distinguishes the pleading-drafting at issue in LEO 1592.

Common questions

Q: Can a legal aid office hand out blank court forms to people it does not represent?

A: Yes, under this opinion, so long as it provides no assistance in completing the forms and gives no advice. The committee holds that providing blank forms alone does not violate Rule 3.4(d) or Rule 8.4(c).

Q: Why isn't this undisclosed ghost-writing?

A: The committee distinguishes LEO 1592, where attorneys drafted pleadings. Following UPL Op. 73, it treats providing forms as not the practice of law, whereas completing them would be, so no disclosure to the court is required.

Background and rules framework

The opinion interprets Rule 3.4(d) (Model Rule 3.4(c); disobeying or advising disregard of a tribunal's rule) and Rule 8.4(c) (Model Rule 8.4(c); dishonesty, fraud, deceit, or misrepresentation), the successors to former DR 7-105(A) and DR 1-102(A)(4). It relies on UPL Op. 73 (providing forms versus completing them) and distinguishes LEO 1592.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4 / Virginia Rule 3.4(d) (disobeying a tribunal's rule; former DR 7-105(A))
• Model Rule 8.4 / Virginia Rule 8.4(c) (misrepresentation; former DR 1-102(A)(4))

Other opinions cited:

• Virginia UPL Opinion 73: providing legal forms is not the practice of law; completing them is.
• Virginia LEO 1592: undisclosed drafting of pleadings may require disclosure to the court.

See also

• VA LEO 1874: Ghostwriting for Pro Se Litigants
• VA LEO 1856: Foreign Lawyer Practice in Virginia

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1761.pdf

Original opinion text

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

Committee Opinion
January 6, 2002
LEGAL ETHICS OPINION 1761

PROVIDING FORMS TO PRO SE LITIGANTS.

You have presented a hypothetical situation concerning a Legal Services office whose office is
near a General District Court. Many pro se litigants who are not eligible for representation by
the Legal Services office make inquiries to that office and requests forms.
Under the facts you have presented, you have asked the committee to opine as to whether
attorneys with the Legal Services office may ethically provide forms to pro se litigants not
represented by Legal Services, and to whom no legal advice would be given.
The appropriate and controlling disciplinary rules relative to your inquiry are Rules 3.4(d) and
8.4(c):
RULE 3.4

Fairness To Opposing Party And Counsel

A lawyer shall not:
(d) Knowingly disobey or advise a client to disregard a standing rule or a ruling of a
tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith,
to test the validity of such rule or ruling.
RULE 8.4

Misconduct

It is professional misconduct for a lawyer to:
(c) engage in professional conduct involving dishonesty, fraud, deceit or
misrepresentation
In LEO #1592, the committee opined that where a court requires that all drafters of pleadings
disclose their identity as such to the court, it may violate former DR 7-105(A)’ s prohibition
against violating, or directing a client to violate, a rule of court as well as former DR 1102(A)(4)’ s prohibition against misrepresentation. The committee notes that the text of those
rules now appears in current rules 3.4(d) and 8.4(c), respectively. In LEO #1592, attorneys were
drafting the pleadings for pro se litigants. In contrast, the members of your staff will merely be
providing blank forms. This distinction was made by the Unauthorized Practice of Law
Committee of the Virginia State Bar in determining that mere provision of forms is not the
practice of law, whereas the completion of those forms would be. See UPL Op. 73. Using that
same distinction, this committee opines that it would not be “ ghost-writing” requiring disclosure
to the court, as contemplated in LEO #1592, for members of a legal aid staff to provide various
legal forms to pro se litigants, so long as no assistance is provided in the completion of those
forms. Provision of the forms, alone, does not violate Rules 3.4(d) and 8.4(c).
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.