Can a lawyer representing one spouse in a divorce draft an appearance for the unrepresented spouse to sign and then file it?

Plain-English summary

A lawyer represented a wife in a dissolution of marriage case in which the husband was unrepresented. The inquiry asked whether the wife's lawyer could draft an appearance for the husband to sign, and if so, whether the lawyer could file the appearance once the husband signed it.

The committee applied former Rule 7-104(a)(2), which barred a lawyer from giving advice, other than to secure counsel, to an unrepresented person whose interests conflict or may conflict with the client's. Drawing on ABA Informal Opinions 1140, 1255, and 1269, the committee distinguished between submitting a responsive pleading (which those opinions treated as improperly advising the unrepresented party) and submitting a bare appearance or waiver. It concluded there is no per se violation in drafting an appearance for an unrepresented spouse to sign, and in later filing it, so long as the lawyer gives no advice about the effect of signing or filing.

The committee observed that it can be difficult for a lawyer to prove later that no advice was given, and noted that if the client insists the lawyer prepare and submit an appearance to the unrepresented spouse, the potential vulnerability of any resulting judgment to attack should be discussed with the client in advance.

Currency note

This opinion was issued in January 1987, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 4.3), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can the lawyer draft an appearance for the unrepresented spouse to sign?

A: The opinion concluded yes; there is no per se violation in preparing an appearance for an unrepresented party's signature, provided the lawyer gives no advice about the effect of signing.

Q: Can the lawyer file the appearance after the spouse signs it?

A: Per the opinion, yes, again so long as the lawyer gives the unrepresented spouse no advice about the effect of the filing.

Q: Would drafting a responsive pleading be treated the same way?

A: No. The committee read the ABA informal opinions to treat preparing and submitting a responsive pleading to an unrepresented party as improperly advising that party, unlike a bare appearance.

Background and rules framework

The opinion applied former Illinois Code Rule 7-104(a)(2), governing a lawyer's dealings with an unrepresented person whose interests may conflict with the client's. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 4.3, corresponding to ABA Model Rule 4.3 on dealing with an unrepresented person.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 7-104(a)(2) (former Code, applied in the opinion)
• Illinois RPC 4.3 (2010 equivalent per the Board's affirmation)
• MR 4.3 (dealing with unrepresented person)

Other opinions cited:

• ABA Informal Opinions 1140, 1255, and 1269: submitting documents to an unrepresented party in a divorce case

See also

• ISBA Ethics Op. 04-03: Mediator Drafting Divorce Docs
• ISBA Ethics Op. 14-02: Plea Offers to Pro Se Defendants
• ISBA Ethics Op. 88-03: Advising an Unrepresented Spouse

Source

• Landing page: https://www.isba.org/ethics/opinions/8611