In an uncontested divorce, can one spouse's lawyer draft and file a responsive pleading and waiver of appearance for the unrepresented other spouse?

Plain-English summary

A lawyer representing one spouse in a divorce drafted and submitted a responsive pleading and a waiver of appearance to the other spouse, who was not represented by counsel. The inquiry asked whether preparing and submitting those papers for the unrepresented opposing party was an improper rendering of legal advice or an impermissible conflict under Rule 1.7.

The committee concluded that a lawyer may draft and submit a responsive pleading and waiver of appearance for the opposing party while representing the lawyer's own client, when the lawyer determines that the preparation and submission do not constitute representation of that opposing party. The committee observed that in some circumstances, generally where property, custody, and support have already been settled and only the divorce remains, it was a common practice of the Family Court Bar to prepare responsive pleadings for the adverse party. Whether that act constituted representation depended on the facts of each case, and the committee placed the duty on the lawyer to assess the facts and decide whether the lawyer was representing the adverse party. If the lawyer determined there was no representation, the conduct was governed by Rule 4.3, under which the lawyer must not state or imply that the lawyer is disinterested. If the lawyer determined that filing the responsive pleading did constitute representation of the adverse party, the lawyer was guided by Rule 1.7. The committee added that, as under the prior Code (citing Advisory Opinion 81-13 (1982)), a lawyer could not represent both plaintiff and defendant even in an uncontested divorce, and adoption of the Rules of Professional Conduct had not changed that result.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could a divorce lawyer prepare the responsive pleading for the other, unrepresented spouse?

A: The committee said yes, but only if the lawyer first determined, on the facts, that preparing and submitting the papers did not amount to representing the opposing party.

Q: Which rule applied if it was not representation?

A: Rule 4.3, governing dealings with an unrepresented person. The committee said the lawyer must not state or imply that the lawyer was disinterested.

Q: Could the lawyer represent both spouses if the divorce was uncontested?

A: The committee said no. As under the prior Code (Advisory Opinion 81-13), a lawyer could not represent both plaintiff and defendant even in an uncontested divorce, and the new Rules did not change that.

Background and rules framework

The opinion applied Rule 4.3 (dealing with an unrepresented person) and Rule 1.7 (conflict of interest), corresponding to Model Rules 4.3 and 1.7. The committee framed the analysis around a threshold fact question: whether drafting the opposing party's papers constituted representation of that party, which then determined which rule controlled.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.3 / Model Rule 4.3: in dealing with an unrepresented person, a lawyer must not state or imply that the lawyer is disinterested.
• South Carolina RPC 1.7 / Model Rule 1.7: conflict of interest in concurrent representation.

Other opinions cited:

• SC Bar Advisory Opinion 81-13 (1982): a lawyer could not represent both parties even in an uncontested divorce.

See also

• SC Bar Ethics Op. 90-17: Advising a Client to Contact an Adverse Party
• SC Bar Ethics Op. 90-25: Identifying a Law Graduate's Status

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-18/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-18

A lawyer, while representing one party to divorce, drafted and submitted a responsive pleading and a waiver of appearance to the other party in the divorce action who was not represented by counsel.

Question:
Does the act of drafting and submitting a responsive pleading and waiver of appearance, by an lawyer involved in a divorce action, to the unrepresented opposing party constitute an unethical rendering of legal advice under Rule of Professional Conduct 1.7?

Summary:
A lawyer may draft and submit a responsive pleading and waiver of appearance on behalf of an opposing party in a divorce action while representing the interests of his own client when he determines that the preparation and submission of the pleadings does not constitute representation.

Opinion:
The question submitted for review is broad in scope. In certain circumstances, generally those in which all aspects of the marriage regarding property, custody and support have been previously settled and only the divorce remains, it is a common practice of the Family Court Bar to prepare and submit responsive pleadings on behalf of the adverse party. Whether this act constitutes representation depends upon the individual facts of each circumstance, and it is the duty of the lawyer to assess the facts and decide in each case whether he is representing the adverse party. If the lawyer determines that he is not representing the adverse party then his conduct is governed by Rule 4.3 which states that the lawyer must not state or imply that he or she is disinterested. If the lawyer determines that the filing of responsive pleadings constitutes a representation of an adverse party then the attorney is guided by Rule 1.7.

Under the Code of Professional Responsibility, a lawyer could not represent both plaintiff and defendant even when the divorce was uncontested (see advisory opinion 81-13 1982). Adoption of the Rules of Professional Conduct has not changed this result.