Year 1987 Ethics Opinions
THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1987-2
COMMITTEE ON
PROFESSIONAL AND JUDICIAL ETHICS
Printer
Friendly Version >>
March 23, 1987
ACTION: Formal
Opinion
OPINION:
The inquirer has been approached
by a potential client in a matrimonial matter, who, after being
advised of the inquirer's regular fees, decided to proceed pro
se. He nevertheless asked the inquirer to be available for
telephone consultation and advice, and to assist him in drafting
pleadings and other documents for use in the litigation. These
pleadings and documents would show him as appearing pro se. The
inquirer plans to charge her regular hourly rate for her
services, which presumably will result in a lower fee than if she
were appearing as counsel of record. She inquires whether she may
perform such legal service for a layman, ostensibly appearing pro
se, and do so without disclosing the fact of her assistance to
the court or to adverse counsel.
Non-disclosure by a pro se
litigant that he is, in fact, receiving legal assistance, may, in
certain circumstances, be a misrepresentation to the court and to
adverse counsel where the assistance is active and substantial or
includes the drafting of pleadings. A lawyer's involvement or
assistance in such misrepresentation would violate DR
1-102(A)(4). Accordingly, we conclude that the inquirer cannot
draft pleadings and render other services of the magnitude
requested unless the client commits himself beforehand to
disclose such assistance to both adverse counsel and the court.
Less substantial services, but not including the drafting of
pleadings, would not require disclosure.
We begin by noting that there is
no ethical impediment to the client representing himself. If he
does not wish, or cannot afford, full legal representation, he is
free to proceed without it. EC 3-7. Nor is it improper for the
lawyer to make available to the client such legal services as the
client can comfortably afford. On the contrary, in doing so, the
lawyer is taking action consistent with the duty of the legal
profession to meet the needs of the public for legal services. EC
2-25.
The ethical problem arises from
the fact that the client will be seen by opposing counsel and the
court as proceeding pro se, that is, without the benefit of
trained legal help, whereas the facts will be otherwise.
Pro se litigants are the
beneficiaries of special treatment. They are "commonly
required to comply with standards less stringent than those
applied to expertly trained members of the legal
profession." Bates v. Jean, 745 F.2d 1146, 1150 (7th Cir.
1984). The courts recognize an "obligation . . . to make
reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack
of legal learning." Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983).
A pro se litigant's pleadings are
held "to less stringent standards than formal pleadings
drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam); see also Hughes v. Rowe, 449 U.S. 5, 9
(1980); Morello v. James, F.2d , No. 86-2106, slip op. at 1140
(2d Cir. Jan. 26, 1987); Washington v. James, 782 F.2d 1134, 1138
(2d Cir. 1986). His complaint is not to be dismissed unless
"frivolous on its face or wholly unsubstantial." Robles
v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). He is to be afforded
the opportunity freely to amend. Holmes v. Goldin, 615 F.2d 83,
85 (2d Cir. 1980).
The special concern for the pro se
litigant is not limited to the pleading stage. Both at trial and
on appeal, he is to be spared "the harsh application of
technical rules." Traguth v. Zuck, 710 F.2d at 95; Bates v.
Jean, 745 F.2d at 1150.
These special rules have been
formulated to compensate for the disadvantage under which the pro
se litigant labors because unrepresented by someone trained in
the law. Where the pro se litigant is himself a lawyer, and hence
not handicapped by ignorance of the law, he receives no different
treatment from any other litigant. His complaint cannot claim
"the very liberal consideration afforded non-lawyer pro se
parties." Guardino v. American Savings & Loan
Association of Florida, 593 F. Supp. 691, 694 (E.D.N.Y. 1984).
Because of the special
consideration given pro se litigants by the courts to compensate
for their lack of legal representation, the failure of a party
who is appearing pro se to reveal that he is in fact receiving
advice and help from an attorney may be seriously misleading. He
may be given deferential or preferential treatment to the
disadvantage of his adversary. The court will have been burdened
unnecessarily with the extra labor of making certain that his
rights as a pro se litigant were fully protected. Klein v. Spear,
Leeds & Kellogg, 309 F.Supp. 341, 342-43 (S.D.N.Y. 1970).
Nondisclosure, therefore, may
amount to conduct involving dishonesty, fraud, deceit or
misrepresentation. The lawyer assisting the pro se litigant will
then be a participant in such misconduct in direct violation of
DR 1-102(A)(4) which provides that "a lawyer shall not
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation."
Whether the failure to disclose
that a pro se litigant is receiving legal assistance amounts to a
misrepresentation will depend upon all the facts, including the
extent of the lawyer's participation. If a lawyer is rendering
active and substantial legal assistance, that fact must be
disclosed to opposing counsel and to the court. Although what
constitutes "active and substantial legal assistance"
will vary with the facts of the case, drafting any pleading falls
into that category, except where no more is involved than
assisting a litigant to fill out a previously prepared form
devised particularly for use by pro se litigants. * Such
assistance or the making available of manuals and pleading forms
would not ordinarily be deemed "active and substantial legal
assistance."
* In concluding that a lawyer's
participation in the preparation of a pleading for a litigant
otherwise acting pro se must be disclosed to avoid any
misrepresentation, we depart from ABA Inf. Op. 1414 (1978), with
which we otherwise agree. That opinion condemns "[e]xtensive
undisclosed participation by a lawyer . . . that permits the
litigant falsely to appear as being without substantial
professional assistance" but indicates that disclosure is
not required where the lawyer does no more than "prepare or
assist in the preparation of a pleading for a litigant who is
otherwise acting pro se."
Where disclosure is required, it
must be made no later than the time when a pleading or other
document prepared by the attorney is filed, or when the client
otherwise utilizes the legal assistance the lawyer has been
rendering. At the minimum, the court and adverse counsel must be
informed that the litigant is, or will be, "receiving
assistance from a lawyer." It would be appropriate to
endorse the pleading, "Prepared by Counsel."
Since what must be disclosed is
the fact that the litigant appearing pro se is receiving legal
assistance, not the identity of the person rendering such
assistance, it is not necessary in the first instance for the
client to volunteer who is counseling him. Nor is there any need
for the lawyer personally to make such disclosure. But the client
is free to identify his lawyer should he so elect, or should the
court or adverse counsel request such information, and the lawyer
cannot instruct the client not to make such disclosure.
Unless the lawyer is able to
secure the client's commitment beforehand to make the necessary
disclosure, or should the client, having made the commitment,
fail to carry it out, the lawyer cannot accept, or having
accepted, must discontinue rendering any further legal assistance
to the client. To do otherwise would put the lawyer at risk of
violating not only DR 1-102(A), as previously discussed, but also
DR 7-102(A)(7), which prohibits a lawyer from counseling or
assisting a client "in conduct that the lawyer knows to be
illegal or fraudulent." Withdrawal from employment is
required where the lawyer "knows or it is obvious that
continued employment will result in violation of a Disciplinary
Rule." DR 2-110(B)(2).
Although the lawyer is not
appearing of record, his obligations to his client are no
different because of that fact. He must use his best efforts to
ensure that the client's decision to proceed in the manner the
client suggested is made only after the client has been informed
of all relevant considerations, and after the client has been
advised of the advantages and disadvantages of proceeding with,
and without, counsel. EC 7-8; EC 3-7. The client must also be
advised of, and his agreement secured to, the disclosure required
of him and he must be informed that if he fails to disclose the
legal assistance he is receiving in circumstances in which, in
the lawyer's opinion, disclosure is necessary to avoid
misrepresentation, the lawyer will have no alternative but to
refuse to render any further assistance.
We do not suggest that every time
a lawyer advises a litigant who is otherwise proceeding pro se,
that such assistance must be revealed, but only that undisclosed
participation by a lawyer in drafting pleadings or in rendering
other active and substantial assistance to a litigant who
therefore represents himself as being without professional
assistance is improper and prohibited by DR 1-102(A)(4) and,
therefore, cannot be undertaken.
