Can a lawyer draft pleadings and advise a litigant who appears pro se without disclosing that help to the court and opposing counsel?

Plain-English summary

A prospective client in a matrimonial matter decided to proceed pro se but asked the inquiring lawyer to be available for telephone consultation and to help draft pleadings and other documents that would show him appearing pro se. The lawyer asked whether she could provide such assistance without disclosing it to the court or adverse counsel. The committee concluded that nondisclosure of active and substantial assistance, including the drafting of pleadings, may be a misrepresentation, so the lawyer may not render assistance of that magnitude unless the client commits beforehand to disclose it; less substantial help, not including drafting pleadings, does not require disclosure.

The committee began by confirming there is no impediment to self-representation (EC 3-7) and that making affordable legal services available is consistent with the profession's duty to meet the public's needs (EC 2-25). The ethical problem is that the court and opposing counsel will see the litigant as proceeding without trained help when that is not so. Pro se litigants receive special treatment: their pleadings are held to less stringent standards and they are spared harsh application of technical rules, allowances designed to compensate for the lack of legal representation. When a pro se litigant is secretly receiving substantial legal help, the failure to disclose may give the litigant deferential treatment to the adversary's disadvantage and burden the court, and so may amount to dishonesty, fraud, deceit, or misrepresentation, making the assisting lawyer a participant in conduct that violates DR 1-102(A)(4).

The committee held that whether nondisclosure is a misrepresentation depends on the extent of the lawyer's participation, but that drafting any pleading constitutes "active and substantial legal assistance" requiring disclosure (except merely helping fill out a pre-printed pro se form). In so holding, it departed from ABA Informal Op. 1414 (1978), which had not required disclosure for preparing pleadings. Where disclosure is required, it must be made no later than when the document is filed; it is enough to inform the court and adverse counsel that the litigant is receiving assistance from a lawyer (for example, by endorsing the pleading "Prepared by Counsel"), and the identity of the lawyer need not be volunteered, though the lawyer may not instruct the client to withhold it. If the lawyer cannot secure the client's commitment to disclose, or the client fails to follow through, the lawyer cannot accept or must discontinue the assistance, to avoid violating DR 1-102(A) and DR 7-102(A)(7), with withdrawal required under DR 2-110(B)(2). The committee added that the lawyer's duties to the client are unchanged by not appearing of record, including advising the client of the advantages and disadvantages of proceeding with and without counsel.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Conduct involving dishonesty or misrepresentation is now addressed by Rule 8.4, limited-scope representation by Rule 1.2(c), candor toward the tribunal by Rule 3.3, and withdrawal by Rule 1.16; later authorities, including ABA Formal Opinion 07-446, have taken a different view of undisclosed assistance to pro se litigants. 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 ghostwrite pleadings for a litigant who files them pro se?

A: The committee concluded that drafting any pleading is active and substantial assistance that must be disclosed to the court and adverse counsel, so the lawyer may not do it unless the client commits to disclose.

Q: Does every bit of behind-the-scenes advice have to be disclosed?

A: The committee concluded no; less substantial help, such as giving advice or making manuals and pleading forms available, does not ordinarily require disclosure, only active and substantial assistance does.

Q: What must the disclosure say, and who makes it?

A: The committee concluded it is enough to inform the court and adverse counsel that the litigant is receiving assistance from a lawyer (for example, endorsing the pleading "Prepared by Counsel"); the lawyer's identity need not be volunteered, and the client, not necessarily the lawyer, may make the disclosure.

Q: What if the client refuses to disclose the assistance?

A: The committee concluded the lawyer cannot accept, or must discontinue, the assistance, because continuing would risk violating DR 1-102(A)(4) and DR 7-102(A)(7), with withdrawal required under DR 2-110(B)(2).

Background and rules framework

The opinion applied New York Code DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), DR 7-102(A)(7) (assisting illegal or fraudulent conduct), and DR 2-110(B)(2) (mandatory withdrawal), informed by EC 2-25, EC 3-7, and EC 7-8. These correspond to ABA Model Rule 8.4 (misconduct), Model Rule 1.2(c) (limited-scope representation), and Model Rule 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct:

• New York Code DR 1-102(A)(4), DR 7-102(A)(7), DR 2-110(B)(2); EC 2-25, EC 3-7, EC 7-8 (applied in the opinion)
• MR 8.4 (misconduct); MR 1.2(c) (limited-scope representation); MR 3.3 (candor toward the tribunal)

Cases:

• Haines v. Kerner, 404 U.S. 519 (1972), pro se pleadings held to less stringent standards
• Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983), allowances for pro se litigants

Other opinions cited:

• ABA Informal Op. 1414 (1978): undisclosed assistance to pro se litigants, from which the committee departed on disclosure of pleadings

See also

• NYC Bar Formal Op. 1989-1: A Client's Interception of an Adversary's Privileged Communications
• NYC Bar Formal Op. 1990-2: Disclosing a Client's Secret When Required by Law

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1987-2/