ETHICAL CONSIDERATIONS FOR AN ATTORNEY

DEALING WITH A PRO SE PARTY

Laura W. Morgan, Executive Editor, Divorce Litigation

(Adapted from May 1998 Divorce Litigation)

I. THE EXPLOSION IN PRO SE DIVORCE REPRESENTATION

Dealing with an opposing party who is a pro se divorce litigant presents many strategic difficulties. See Cornelius D. Helfrich, Facing a Pro Se Opponent, 14 The Compleat Lawyer 41 (Summer 1997); James R. Greenfield, Dealing with the Pro Se Spouse, 6 Family Advocate 12 (Fall 1983). Dealing with a pro se opposing party presents ethical challenges as well.

One need only walk into the local book super-store to note that do-it-yourself divorces (as well as do-it-yourself wills, copyrights, patents, small claims court representation, and bankruptcy) is now acceptable, even de rigeur. One can choose from the following titles: Do-It-Yourself Divorce (E-Z Legal Forms, Inc. 1995); Dawn B. Berry, The Divorce Sourcebook (Lowell House 1995); Timothy J. Horgan, Winning Your Divorce: A Man’s Survival Guide (Penguin 1995); Mel Krantzler, Divorcing (St. Martin’s Press 1988) (written with that well-known divorce litigation attorney Melvin Belli); Sam Margulies, Ph.D., J.D., Getting Divorced Without Ruining Your Life (Simon & Schuster 1992); Beverly Pekala, Don’t Settle For Less: A Woman’s Guide To Getting A Fair Divorce and Custody Settlement (Doubleday 1994); Patricia Phillips, J.D., Divorce: A Woman’s Guilde to Getting a Fair Share (Macmillan 1995); Rich Wemhoff, Ph.D., Divorce: The Best Resources To Help You Survive (Resource Pathways 1997); and my favorite title, Pamela Weintraub & Terry Hillman, The Complete Idiot’s Guilde to Surviving Divorce (Alpha Books 1996). Indeed, some titles even go so far as to suggest that representing yourself in a divorce is preferable to having an attorney represent you. E.g., Jenny Garden, The Almost Painless Divorce: What Your Lawyer Won’t Tell You (Evanston Publishing 1996).

The booklist is merely a reflection of an explosion in pro se litigation. In 1993, Bruce D. Sales reported on behalf of the American Bar Association’s Standing Committee on the Delivery of Legal Services that pro se litigation in divorce cases is becoming more common and acceptable for not only the poor but for the middle class. See Bruce D. Sales, Connie J. Beck, Richard K Haan, Is Self-Representation a Reasonable Alternative to Attorney Representation in Divorce Cases?, 37 St. Louis U. L.J. 553 (1993) (summarizing report and statistics).

The explosion in pro se litigation is directly attributable to many states’ policy of encouraging pro se litigation in divorce cases as a way to ease court congestion. See Jane C. Murphy, Access to Legal Remedies: The Crisis in Family Law, 8 B.Y.U. J. Pub. Law 123 (Spring 1994). For example, Arizona, California, and Florida have civil procedure rules specifically tailored to pro se divorce litigation. See Ariz. R. Civ. P. 55(b)(1)(ii); Florida Bar Re: Amendment to Florida Rules of Civil Procedure (Dissolution of Marriage), 450 So. 2d 810 (Fla. 1983). Both California and Arizona have special clinics specially designed to help the pro se divorce litigant. Cheryl Romo, Pro Pers Find They Have a New Friend at Family Court, The Los Angeles Daily Journal (March 13, 1998); Karen Westover, Divorce Do-It-Yourself In Arizona, 19 Family Advocate No. 4 at 40 (Spring 1997). See generally Elizabeth McCulloch, Let Me Show You How: Pro Se Divorce Courts and Client Power, 48 Fla. L. Rev. 481 (1996); Suzanne Northington, Filings in Pro Per Are Up - Way Up - In Family Court, 14 California Lawyer No. 5 at 29 (May 1992); Anne M. Eggers, Summary Dissolution and Uncontested Pro Se Representation: Viable Alternatives in the Divorce Dilemma, 12 Hamline Journal of Public Law and Policy 285 (Fall 1991); Scott Ozmun, Pro Se Divorce Clinics, 16 Barrister No. 4 at 45 (Winter 1989); Emily Joselson and Judy Kay, Pro Se Divorce: A Strategy for Empowering Women, 1 Law & Inequality Journal 239 (Nov. 1983); Elizabeth Thomas, A Pro Bono Program for Pro Se Family Law, 17 Clearinghouse Review 247 (Summer 1983).

Since it is more than likely that a divorce lawyer will face a pro se divorce litigant at some point, it is essential to be aware not only of the useful negotiating tactics outlined by Sondra Harris, but also of the ethical requirements.

II. ETHICAL CONSIDERATIONS WHEN FACING A PRO SE DIVORCE LITIGANT

A. THE DUTY TO BE COURTEOUS

Some attorneys make the the mistake of believing that because he is facing a pro se litigant, he may be aggressive to the point of rudeness and incivility. Model Rule 4.4 provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use means of obtaining evidence that violate the legal rights of such a person. Under the Model Code, DR 7-102 and DR 7-106 provide essentially the same.

B. THE DUTY TO BE TRUTHFUL IN ALL STATEMENTS

Model Rule 4.1 provides that in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person, or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Accord DR 7-102(A)(3), (5); Restatement of the Law Governing Lawyers § 157 (Tent. Draft No. 8, 1997).

In the context of negotiations, the comment to Rule 4.1 states that as a negotiator, a lawyer seeks a result advantageous to the client but consistent with the requirements of honest dealing with others. Moreover, estimates of value and of a party’s intentions as to an acceptable settlement are not statements of "material" fact. Thus, a certain amount of puffery as to the value of a marital estate would not subject an attorney to a charge of dishonesty. See Craver, Negotiation Ethics: How to be Deceptive Without Being Dishonest/How To be Assertive Without Being Offensive, 38 S. Tex. L. Rev. 713 (1997).

Once negotiations have produced a settlement, a lawyer may not make surreptitious changes in the final draft or keep quiet about inadvertent changes. ABA Informal Ethics Opinion 86-1518 (1986). In essence, the lawyer may not take advantage of the fact that the other party is not a lawyer.

C. ETHICS GOVERNING COMMUNICATIONS WITH THE OPPOSING PRO SE PARTY

Model Rule 4.3 provides that when dealing on behalf of a client with a person who is not represented by counsel, the lawyer shall not state or imply that he is disinterested in the matter. Rather, the lawyer must make it clear that he is advocating on behalf of his client. Model Code DR 7-104(A)(2) provides the same.

The comment to Model Rule 4.3 states:

An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.

Accord Michigan Informal Ethics Opinion CI-1206 (1988) (lawyers should not give unrepresented paarties any advice other than the advice to obtain counsel).

The advice to obtain counsel may take the form of recommending a referral service, legal aid service, or other bar approved service; the lawyer may not recommend a specific lawyer. ABA Informal Ethics Opinion 1194 (1971). The lawyer may never recommend that the opposing party not obtain counsel. Vickers v. Gifford-Hill & Co., 534 F.2d 1311 (8^th Cir. 1976); see also Webb v. Webb, 16 Va. App. 486, 431 S.E.2d 55 (1993) (attorney/husband engaged in overreaching and fraud when he negotiated a separation agreement with his unrepresented wife, telling her she need not obtain representation and that she was taken care of). Further, since the lawyer may not offer advice to the unrepresented party other than the advice to obtain counsel, the lawyer may not funnel information to the opposing party through his own client. Kentucky Bar Association Ethics Opinion E-365 (March 11, 1994). New York State Ethics Opinion 478 (1978). This is especially important in divorce cases where the parties are in constant contact with one another.

Since the lawyer may not advise the opposing pro se party, the question arises as to whether the lawyer may draft documents for execution by the pro se party. For example, ABA Informal Ethics Opinion 1269 (1973) stated it would be ethical and proper for a plaintiff’s attorney to submit a waiver of the issuance and service of summons and the entry of appearance to an unrepresented defendant in a divorce case for execution, as long as the documents are not accompanied by or coupled with the giving of any advice to the defendant. Similarly, in Illinois Ethics Opinion 86-11, the Committee stated that a lawyer may draft an apprearance for an unrepresented opposing party in a divorce so long as he does not advise him on the effect of signing and filing the appearance. Alabama Ethics Opinion, Unnumberd, 1977, also held that in an uncontested divorce case, a lawyer may file suit for the plaintiff and submit to the unrepresented defendant an acceptance of service, answer, and waiver, so long as certain precautions are taken, including notice that the lawyer is representing the plaintiff only and the defendant is advised to seek counsel. Accord Missouri Informal Ethics Opinion No. 9 (1977); Pennsylvania Committee on Legal Ethics and Professional Responsibiity No. 93-25 (February 1, 1993) (lawyer who represents client in divorce case may send to other spouse who is not represented an affidavit of consent for signature)

As to more substantive matters than appearance and waiver of service of process, Rhode Island Ethics Advisory Panel Opinion 96-22 (September 12, 1996) held that a lawyer representing a woman in an uncontested limited asset divorce may provide the pro se husband, who asked the attorney for assistance, with a financial statement form and may draft a property settlement agreement reflecting the parties’ agreement, but may not assist the husband in the proceeding. Accord Pennsylvania Committee on Legal Ethics and Professional Responsibility Opinion 96-145 (October 14, 1996) (lawyer representing wife in divorce case may comply with the husband’s request for a meeting to review financial information; lawyer must not, however, imply that lawyer is dininterested and must not give legal advice).

At least one ethics opinion, however, specifically addressing a negotiations in a divorce case, stated that a lawyer may not prepare and submit for the opposing party’s signature a consent order on child support and custody. North Carolina Ethics Opinion 121 (1977). Virginia Ethics Opinion 535 (1983) also states that a lawyer may not prepare pleadings or samples of pleadings for an unrepresented adversary in a divorce proceeding where the lawyer knows or has reason to know that the adversary may use those documents or samples in the proceedings.

Perhaps the biggest ethical problems you will face when dealing with a pro se client will be when the pro se client is another attorney, and the ethical problems will not be yours, they will be his. Where a lawyer is representing him/herself in a divorce, that lawyer may not communicate with an adverse party, i.e. the other spouse, when the adverse party is represented by counsel. Massachusetts Bar Association Ethics Committee Opinion 97-1 (February 6, 1997). Nonetheless, lawyers representing themselves in divorce cases are constantly overreaching and communicating with the other represented party. In Runsvold v. Idaho State Bar, 129 Idaho 419, 925 P.2d 1118 (1996), the husband represented himself in various post-divorce matters, while the wife was represented by counsel at all times. Nonetheless, the husband/lawyer repeatedly sent pleadings directly to his ex-wife and communicated with her about pending litigation. The wife’s attorney protested this practice, but to no avail. The wife’s attorney finally filed a grievance against the husband. The court held that the husband was prohibited by Rule 4.2 from communicating with an adverse party who is represented by counsel. The court did not agree with the husband that he was not representing "a client" and therefore the rule did not apply. Accord Sandstrom v. Sandstrom, 880 P.2d 103 (Wyo. 1994); Alaska Bar Association Ethics Committee Opinion 95-7 (October 20, 1995) (lawyer representing himself may not communicate directly with represented opponent); District of Columbia Legal Ethics Committee Opinion 258 (September 20, 1995); Michigan Committee on Professional and Judicial Ethics of the State Bar of Michigan Opinion CI-1206 (August 2, 1988).

III. CONCLUSION

The ethical duties of an attorney in a divorce case who is opposing a pro se litigant are common-sensical: treat the other party with the respect due another attorney, represent your own client zealously within the bounds of the law, assist the other party (if you wish) with "ministerial" pleadings such as waiver of process and financial statements, but don’t give anything away just because the other party is proceeding pro se. Be especially wary of the attorney/opposing party/pro se litigant.

Despite your best efforts to be fair and maintain a level playing field, you may feel that the court is bending over backwards to assist the pro se litigant, putting you at a distinct disadvantage. Certainly, self-representation in a divorce case places the judge in an ethical quandry. One commentator has stated there in an inherent tension between the court’s desire to protect the ignorant pro se litigant and the need to preserve the integrity of the adversarial system in which the court is the passive adjudicator. Helem B. Kim, Legal Education for the Pro Se Litigant: A Step Towards a Meaningful Right to be Heard, 96 Yale L.J. 1641, 1646 (1987). Another commentator has collected case law showing some courts treat pro se litigants more favorably, while other courts do not accord self-represented litigants any special treatment. Joseph M. McLaughlin, An Extension of the Right to Access, 55 Fordham L. Rev. 1109, 1111-21 (1987).

The judges have recognized this tension. See, e.g., Robert B. Yegge, Divorce Litigants Without Lawyers: This Crisis For Bench And Bar Needs Answers Now, 33 Judges’ Journal No. 2 at 8 (Spring 1994); Michael Moline, At a Loss in Family Court: Going it Alone Can Have Disastrous Consequences if Judges Fail to Intervene, 16 California Lawyer No. 7 at 17 (July 1996). Next month, Divorce Litigation will hear from Judge Howard Lipsey of the Family Court of the State of Rhode Island for his view on how courts do and should treat the pro se family law litigant.

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