Can a lawyer publish a do-it-yourself divorce kit of forms and explanations for couples seeking an uncontested divorce?

Plain-English summary

Informal Opinion 3/73 answered whether a lawyer would violate the Code of Professional Responsibility by publishing a book of forms and explanations so that a married couple with no minor children, who agreed on any property settlement and had lived separately for one year, could seek their own uncontested divorce without a lawyer. Based strictly on the specific language of the question, the committee concluded the publication would not violate DR 3-101(A), because Wisconsin law permits a party to represent himself in legal matters, citing EC 3-7.

The committee added that implementation under facts not apparent from the question could be unethical. If the author publicized himself as a lawyer beyond a dignified identification of authorship (such as "member of the Bar of Wisconsin"), he could violate DR 2-101(A) and (B)(5) on advertising. If the "explanations" amounted to advice on legal problems, that gratuitous advice, coupled with publicity of authorship, could make any later employment of the lawyer suspect under EC 2-3. The committee quoted EC 2-5, which cautions that a lawyer writing to educate the public should refrain from giving, or appearing to give, a general solution applicable to all similar problems, because slight changes in facts can require different advice.

The committee placed an additional observation on the record: while every lawyer has a duty to help the public recognize legal problems, it questioned whether a lawyer ethically discharges that responsibility by indiscriminately handing laypeople the forms of legal combat without advice on the consequences of their use. It noted the state's public-policy interest in both marriage and divorce, and that parties to a divorce, contested or defaulted, are not always in equal positions, so that in default situations one party is inevitably disadvantaged when neither is properly advised.

Currency note

This opinion was issued in 1973, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code of Professional Responsibility (DR 3-101, DR 2-101, EC 2-3, EC 2-5, EC 3-7). The advertising restrictions it relies on (DR 2-101) predate Bates v. State Bar of Arizona (1977), which struck categorical bans on lawyer advertising, so the advertising analysis here does not reflect current First Amendment limits. The current counterparts are SCR 20:5.5 / Model Rule 5.5 (unauthorized practice of law) and SCR 20:7.1 / Model Rule 7.1 (communications concerning a lawyer's services). 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: Is publishing a do-it-yourself divorce kit the unauthorized practice of law?

A: Under this opinion, not by itself. The committee held the publication would not violate DR 3-101(A) because Wisconsin permits a party to represent himself.

Q: What could make such a publication unethical?

A: The committee identified two risks: promoting the author as a lawyer beyond dignified identification (DR 2-101), and including individualized legal advice that, with publicity of authorship, could make later employment of the lawyer suspect (EC 2-3, EC 2-5).

Q: Did the committee endorse the idea of self-help divorce forms?

A: No. It observed that handing laypeople forms without advice on the consequences raises concerns, especially in default cases where one party may be at a disadvantage.

Background and rules framework

The opinion applied former DR 3-101 (unauthorized practice), DR 2-101 (advertising), and EC 2-3, EC 2-5, and EC 3-7. The current counterparts are SCR 20:5.5 / Model Rule 5.5 and SCR 20:7.1 / Model Rule 7.1.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / SCR 20:5.5 (unauthorized practice of law); former DR 3-101(A), EC 3-7
• Model Rule 7.1 / SCR 20:7.1 (communications concerning a lawyer's services); former DR 2-101, EC 2-3, EC 2-5

Statutes:

• Wis. Stat. sec. 247.07(6) (1969) (grounds for divorce after one year's voluntary separation)

See also

• WI Ethics Op. I-2-73: A Lawyer Circulating a Divorce Handbook
• WI Ethics Op. E-65-2: Lawyer-Employee of an Accounting Firm Serving Customers

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/I-3-73.pdf