Committee Reports

Formal Opinion 1987-2

March 23, 1987

ACTION: Formal 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.