91-03: Scope of Representation; Candor Toward Tribunal; Fairness to Opposing Party or Counsel

1/1991

Guidelines for attorney who prepares pleadings, gives legal advice and provides other legal services for client who appears in court in propria persona.

FACTS

This inquiry has been submitted to the committee by a Superior Court Judge in County X, State of Arizona. It has come to his attention that attorneys often represent clients in domestic relations cases for the limited purpose of giving legal advice and preparing pleadings, but not for the purpose of appearing in court on the clients' behalf. Instead, the clients appear in court in propria persona.

QUESTIONS

1. May an attorney, with ethical propriety, prepare pleadings, give legal advice, and provide other legal services for a person who appears in court in propria persona?

2. What is the attorney's ethical responsibility to the court in such a situation?

3. At what point is there a duty on the part of the attorney to disclose his or her identity and participation to the court and counsel of record for other parties to the action?

4. At what point does the conduct of the attorney constitute an “appearance” in the action?

ETHICAL RULES INVOLVED

ER 1.2. Scope of Representation

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Comment to ER 1.2:

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An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate ER 1.1, or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.

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ER 3.1. Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law....

ER 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) except as required by applicable law, offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

ER 3.4. Fairness to Opposing Party and Counsel

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

ER 4.2. Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

ER 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

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OPINION

This committee does not have jurisdiction to render opinions on questions of law. See our Statement of Jurisdictional Policies, paragraph 6(a). Therefore, we cannot advise the inquiring judge as to his fourth question, concerning the point at which an attorney's representation of a client constitutes an "appearance" in a lawsuit.

As to the inquiring judge's first question, a lawyer may agree to represent a client on a limited basis as long as (a) the client consents after consultation, and (b) the lawyer does not ask the client to agree to representation so limited in scope as to violate the Rules of Professional Conduct or other law. See 17A A.R.S. Rules of the Supreme Court, Rule 42, ER 1.2(cl and the Comment thereto, at pp. 332-333. If these conditions are met, such a limited representation may include the type of representation described in the present inquiry, where the attorney does not appear in court on behalf of his client. In fact, this type of limited representation is probably necessary to make legal services available to clients having limited resources.

Obviously, in domestic relations cases, where the clients are often unsophisticated and unfamiliar with legal proceedings, the attorney's presentation at the consultation with the client should be detailed and clear. Although ER 1.2 does not require it, it would seem advisable to secure the client's consent to the limited representation in writing.

When an attorney undertakes this sort of limited representation, he also has responsibilities to the court and to other counsel of record in the action. For example, an attorney cannot prepare pleadings for his client, which the client is to file in propria persona, that are frivolous. See 17A A.R.S. Rules of the Supreme Court, Rule 42, ER 3.1 and ER 8.4(a), at pp. 391 and 432, respectively; Maine Board of Bar Overseers Professional Ethics Committee, Opinion 89 (August 31, 1988) (ABA/BNA Lawyers' Manual on Professional Conduct, vol. 4, no. 19, October 12, 1988, issue, at p. 330) (an attorney remains responsible to the client for assuring that the complaint is adequate and does not violate Rule 11 of the Maine Rules of Civil Procedure, even when the client is to sign and file the complaint in propria persona). Nor can an attorney advise or assist the client in doing anything else that the Rule, of Professional Conduct would prohibit the attorney from doing personally. A listing of all such rules is impractical, but clearly includes ER 3.3, Candor Toward the Tribunal, ER 3.4, Fairness to Opposing Party and Counsel, and ER 4.2, Communication with Person Represented by Counsel.

Although this committee cannot advise in response to questions of law, any attorney representing a client on the limited basis mentioned in this inquiry should consult Rule 11 (as amended), Arizona Rules of Civil Procedure (16 A.R.S. 1990 cumul. pocket part, at p. 11) which provides, in part:

“11(a) Signing of pleadings, motions, and other papers; sanctions. Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the .party's pleading, motion, or other paper and state the party's address. . . .”

The interpretation of Rule 11 is ultimately for the courts. However, we believe that the inquiring judge should be aware that Rule 11 may impose a legal requirement on an attorney to disclose his limited representation to the court and to counsel of record for other parties to the action.

In conclusion, we hold that an attorney may ethically represent a client on a limited basis, as long as: (1) the client consents after consultation; (2) the scope of the representation is not so limited as to cause the attorney to violate the Ethical Rules or other law; and (3) the attorney does not advise the client to do something that the attorney would be prohibited from doing personally.

DISSENT

One committee member dissented from the committee's decision to strike the following language from the opinion:

[T]he attorney must disclose that he is representing his client to the court and to opposing counsel whenever his assistance to the client is ongoing or substantial. Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Opinion 1987-2 (March 23, 1987) (ABA/BNA Lawyers' Manual on Professional Conduct, vol. 3, no. 7, April 29, 1987, issue, at pp. 123-124); A.B.A. Informal Opinion 1414 (June 6, 1978). The rationale of both of these opinions is that a lawyer may not enable a litigant he represents to falsely appear as being without substantial professional assistance; to do so would constitute conduct involving fraud, deceit and misrepresentation. Such conduct is prohibited by ER 8.4(c). Of course, whether an attorney's assistance is "substantial" or not cannot be precisely determined, and is fundamentally a question of fact. It will depend on the complexity and subject matter of the litigation, the length of the proceedings, the degree of contact with and amount of advice given to the client, and the number of documents filed on behalf of the client. It is safe to say that the amount of activity required for disclosure would be fairly limited. Any continuous representation, where the client consults with an attorney for advice as the litigation develops, requires disclosure to the court and the opposing attorney.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.