The Florida Bar

March 30, 1966

A lawyer who represents one spouse in a divorce action may properly reduce to writing the terms of a property settlement previously agreed upon by the parties, even though the other spouse is not represented by counsel, if the lawyer avoids everything that may tend to mislead the unrepresented spouse and if he does not undertake to advise the unrepresented spouse as to the law. The lawyer should emphasize that he is not counseling the unrepresented spouse and should urge him or her to secure counsel.

Canons: 6, 9
Opinions: ABA 102, Michigan 85

Committeeman MacDonald stated the opinion of the committee:

At the outset we note the indication of the inquirer that the subject matter of this inquiry was initially brought to his attention in his capacity as Chairman of the Grievance Committee of his circuit by another lawyer. However, the inquiry also states the situation is not one pending before the Committee; otherwise, the policy of The Florida Bar as enunciated by its Board of Governors would prohibit this Committee rendering an advisory opinion. Moreover, we take note of the fact that although the inquiry was initially posed by another lawyer, it involves not only his proposed conduct, but the inquirer's proposed conduct of an identical nature. Otherwise we would not be in a position to render our opinion because the same policy of The Florida Bar precludes this Committee rendering opinions to one member of the Bar concerning the conduct of another member of the Bar.

In effect, the inquiry is as to the ethical propriety of a lawyer who is representing one spouse in a divorce action reducing to writing the terms of a property settlement contract (which specifically states that it is not predicated upon the successful prosecution of the divorce action) in accordance with an understanding achieved between the parties prior to the inception of the representation, and the subsequent obtaining of the execution of such agreement not only by the spouse represented by the attorney, but also by the other spouse who is not represented by counsel. It is contemplated that counsel would advise the parties that he can only represent the one party retaining him and that he does not act as counsel for the other spouse. We are further advised that the inquiring lawyer proposed to file suit for divorce on behalf of the spouse retaining him, to obtain personal service on the defendant spouse and to thereafter procure a decree pro confesso if no answer is taken. At the time of the offering of proof in connection with the cause counsel contemplates the identification by his client of the contract prepared by him and the offering of the same in evidence.

With respect to the latter facet of the inquiry we are advised that on a previous occasion a Circuit Judge in the circuit has expressed the opinion that the placing in evidence of the contract executed by the defendant against whom a decree pro confesso has been entered constitutes a responsive pleading or appearance and that, accordingly, the contract cannot be introduced unless such party is represented by an attorney. The question of whether actions on the part of an individual or documents executed by him constitute an appearance or pleading is a question of law beyond the jurisdiction of this Committee. Moreover, the question of whether a non-lawyer may execute his own appearance without intervention of an attorney would also appear to be a question of law. In passing, however, it does not seem untoward to observe that the Committee is not familiar with an appellate ruling in the State of Florida denying a defendant the right to act as his own attorney. Moreover, the limited information available to the Committee suggests that the practice outlined is not at all unusual in many areas of Florida. Of course, a lawyer representing one spouse may not properly prepare an answer for the unrepresented spouse. (Opinion 85, Committee on Professional Ethics, State Bar of Michigan, January 1945; State ex rel The Florida Bar v. Oxford, 127 So.2d 107, 112 [Fla. 1961].)

In any event, the Committee is unanimously of the opinion that in the circumstances outlined, the reduction to writing of the settlement agreement previously arrived at by the parties and the procuring of the execution of the same by the spouse not represented by counsel are ethically proper. We accompany this expression with the strong caveat that extreme caution must be exercised to comply at all times with the provisions of Canon 9, which, inter alia, provides:

It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.

In order to comply not only with the letter but with the spirit of this Canon in many situations, including those in which the property rights involved are particularly complex, it would be necessary to strenuously urge upon the non-represented party the importance of the retention by him of counsel of his own selection. In extreme situations counsel should not proceed with the cause until the other party has either selected such counsel or expressly waived the right to counsel, preferably in the presence of the Court. In all cases, at a minimum the non-represented spouse should be advised of his right to procure independent counsel and should be reminded that the attorney is not acting as his counsel. In no instance should counsel undertake to advise such non-represented spouse as to the legal effect of the agreement or any facet thereof. Conversely, we know of no means by which a lawyer may insist that another person retain a lawyer.

We believe our view is supported by Opinion 102, Committee on Professional Ethics of The American Bar Association, December 15, 1933, upholding the propriety of the attorney representing an employer preparing settlement papers in a workmen's compensation matter documenting a settlement between the employer and an employee not represented by counsel.

[Revised: 08-24-2011]