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.