Can a lawyer for the petitioning spouse in a divorce send the unrepresented spouse a letter advising on the meaning of court documents and the choice to waive counsel?

Plain-English summary

Before serving process in a divorce case, a lawyer for the petitioning spouse routinely sent the unrepresented respondent spouse a letter. The letter urged handling the matter amicably to save cost and emotion, acknowledged the lawyer could not represent both spouses, told the respondent he had a right to hire counsel but also a right to waive it, suggested he might just spend a few minutes with an attorney to clarify issues, and explained the meaning and effect of enclosed documents (an appearance, a stipulation, and a marital settlement agreement) that it asked him to sign and return. The committee was asked whether the letter improperly gave legal advice to an unrepresented, adverse person and misleadingly cast the lawyer as a disinterested protector of that person's interests.

The committee concluded the letter improperly gave legal advice to an unrepresented adverse party: the advice it gave was misleading in what it said and inadequate in what it left out, and it fostered the unwarranted assumption that the lawyer was disinterested and would use his judgment to protect the respondent even where his interests conflicted with the client's. Rather than urge the respondent to get his own counsel, the letter downplayed that and left the impression it might serve the respondent's interest to waive counsel and save "time and expense." That violated former Rule 7-104(a)(2), which bars giving advice, other than to secure counsel, to an unrepresented person whose interests may conflict with the client's.

The committee distinguished its Opinion 86-11, which had allowed a lawyer to prepare an appearance for an unrepresented spouse, submit it for signing, and later file it, so long as the lawyer gave no advice about the effect of signing or filing. The letter here gave misleading and inadequate advice in nearly every sentence and went far beyond anything Opinion 86-11 contemplated.

Currency note

This opinion was issued in August 1988, 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 May 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 petitioner's lawyer send the unrepresented spouse a letter explaining the documents and the option to waive counsel?

A: The opinion concluded no; such a letter improperly gave legal advice to an unrepresented adverse party in violation of former Rule 7-104(a)(2), which permits only the advice to secure counsel.

Q: What made the letter misleading?

A: Per the opinion, it was misleading in what it said and inadequate in what it omitted, and it fostered the impression that the lawyer was disinterested and would protect the unrepresented spouse's interests.

Q: How is this different from Opinion 86-11, which allowed preparing an appearance?

A: The committee explained that 86-11 permitted preparing, submitting, and filing an appearance only where the lawyer gave no advice about its effect; this letter gave misleading advice throughout and went far beyond that.

Background and rules framework

The opinion applied former Illinois Code Rule 7-104(a)(2), governing communications with an unrepresented person whose interests may conflict with the client's, which permits only the advice to secure counsel. 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) (advising an unrepresented adverse person, applied in the opinion)
• Illinois RPC 4.3 (2010 equivalent per the Board's affirmation)
• MR 4.3 (dealing with an unrepresented person)

Other opinions cited:

• ISBA Opinion 86-11: preparing and filing an appearance for an unrepresented spouse without giving advice

See also

• ISBA Ethics Op. 86-11: Appearance for Unrepresented Spouse
• ISBA Ethics Op. 14-02: Plea Offers to Pro Se Defendants
• ISBA Ethics Op. 04-03: Mediator Drafting Divorce Docs

Source

• Landing page: https://www.isba.org/ethics/opinions/8803