Can a lawyer agree to draft a complaint for a client to sign and file pro se, without entering an appearance, when the lawyer declines the full case?

Plain-English summary

A woman consulted a lawyer about a discrimination claim against her former employer. Her Human Rights Commission complaint had been denied, but the lawyer believed the claim was not frivolous (the employer had previously offered settlement). The lawyer declined the case, recommended other counsel, and urged her to file promptly to avoid a statute-of-limitations problem. When she returned a week later unable to find other counsel and distressed about the limitations period, the lawyer again declined full representation but agreed, for a fee, to prepare a complaint the client could sign and file herself. A Superior Court Justice questioned the propriety of that conduct, and the Grievance Commission asked the Professional Ethics Commission, under Bar Rule 11(c)(1), whether any Bar Rule had been violated.

The Commission concluded the lawyer did not act unethically in agreeing to limit the representation to preparing the complaint; indeed, had the lawyer declined to prepare it, the action might have been barred by limitations. There was no suggestion the complaint was frivolous, and it did not appear to have been prepared "merely to serve to harass or maliciously injure another" under Bar Rule 3.7(a). Because the representation was limited to preparing the complaint, the lawyer was not required to sign it or enter an appearance, and the client was entitled to sign and proceed pro se. The Commission added that a lawyer who agrees to such a limited role remains responsible to the client for assuring the complaint is adequate and does not violate Rule 11 of the Maine Rules of Civil Procedure.

Currency note

This opinion was issued in 1988, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer limit the representation to just drafting a complaint the client files pro se?

A: The opinion concluded yes; on these facts the lawyer did not act unethically in agreeing to limit the representation to preparing the complaint, and the client was entitled to sign and proceed pro se.

Q: Does the drafting lawyer have to sign the complaint or enter an appearance?

A: The opinion concluded no; because the representation was limited to preparing the complaint, the lawyer was not required to sign it or otherwise enter an appearance as counsel.

Q: Does limiting the role limit the lawyer's responsibility for the document?

A: No. The opinion stated the lawyer remains responsible to the client for assuring the complaint is adequate and does not violate Rule 11 of the Maine Rules of Civil Procedure.

Background and rules framework

The opinion applies former Maine Bar Rule 3.7(a), which barred asserting a position or filing that would "merely to serve to harass or maliciously injure another," corresponding to ABA Model Rule 3.1 (meritorious claims and contentions). The arrangement, limiting the scope of the representation to drafting, reflects what is now framed under ABA Model Rule 1.2(c) (limiting the objectives and scope of representation). The request reached the Commission from the Grievance Commission under Bar Rule 11(c)(1), so the Commission's usual practice of not opining on past conduct (Opinion No. 67) did not apply.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.1 (meritorious claims and contentions); Model Rule 1.2 (scope of representation)
• Maine Bar Rule 3.7(a); Bar Rule 11(c)(1)

Other authority:

• Rule 11, Maine Rules of Civil Procedure (adequacy of pleadings)
• Maine Professional Ethics Commission Opinion No. 67 (practice of not opining on past conduct)

See also

• ABA Formal Op. 07-446: Ghostwriting for Pro Se Litigants
• ABA Formal Op. 472: Limited-Scope Clients and Contact

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91478

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: August 31, 1988

Question

The Grievance Commission has requested an advisory opinion as to whether an attorney acted unethically under the following circumstances. The attorney in question was consulted by a woman regarding the possibility of initiating litigation alleging discrimination by her former employer. Although the claimant's complaint had been denied by the Human Rights Commission, the attorney believed that her claim was not frivolous. Indeed, her employer had previously made an offer of settlement. Nevertheless, the attorney declined to accept the case because he felt that it could be difficult to prove and that the claimant would not be an easy person to work with. He, therefore, recommended other counsel and urged her to file her complaint promptly to avoid any problem with the statute of limitations.

The claimant returned in a week reporting that she had been unable to find other counsel. She was distressed that her claim might be barred by the statute of limitations. The attorney again declined to undertake the representation, but agreed for a fee to prepare a complaint which the claimant could sign herself and file to protect her rights. Subsequently the propriety of the attorney's actions were questioned by a Superior Court Justice. The attorney then requested an opinion from the Grievance Commission as to whether he had in any respect acted unethically. The Grievance Commission has, in turn, asked this Commission pursuant to Bar Rule 11(c)(1) to determine whether any Bar Rule has been violated.[1]

Opinion

It is the opinion of the Commission that, under the circumstances presented, the attorney did not act unethically in agreeing with the client to limit the extent of his representation to the preparation of the complaint. Indeed, if the attorney had declined to prepare the complaint, the action might have been barred by the statute of limitations. There is no suggestion that the complaint, as drafted by the attorney, was frivolous; nor does it appear from the facts presented that the complaint was prepared "merely to serve to harass or maliciously injure another." Bar Rule 3.7(a).

Since the lawyer's representation of the client was limited to preparation of the complaint, the lawyer was not required to sign the complaint or otherwise enter his appearance in court as counsel for the plaintiff, and the plaintiff was entitled to sign the complaint and proceed pro se. At the same time, however, the Commission notes that a lawyer who agrees to represent a client in a limited role such as this remains responsible to the client for assuring that the complaint is adequate and does not violate the requirements of Rule 11 of Maine Rules of Civil Procedure.

Footnote

[1] Since this request comes from the Grievance Commission, not from an individual lawyer, the Professional Ethics Commission's practice of not opining on past conduct (see Opinion No. 67) is not applicable.