The Florida Bar
It is ethical for an attorney to prepare pleadings without signing as attorney for a party. It is not ethical for an attorney to enter into discussions with both husband and wife in order to prepare a settlement agreement in a divorce action and then represent one of the parties in obtaining the dissolution.
Note: After this opinion was written, Rule 4-1.2 was amended to add subdivision (c) which provides as follows: If not prohibited by law or rule, a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. If the attorney and client agree to limit the scope of the representation, the lawyer shall advise the client regarding applicability of the rule prohibiting communication with a represented person.
CPR: EC 4-5, DR 7-104(A)(1), (2); Canon 9
Misc.: Fla.R.Civ.P. 1.030(a)
We are presented with the following questions:
(2) Is it ethical for an attorney to enter into discussions with both the husband and wife in order to prepare a settlement agreement in a divorce action, and then represent one of the parties in obtaining the dissolution?
As to the first question, Florida Rule of Civil Procedure 1.030(a) places a duty upon an attorney of record to sign pleadings prepared by him. However, there is no affirmative obligation on an attorney to sign pleadings prepared by him if he is not an attorney of record. It is not uncommon for a lawyer to offer limited services in assisting a party in the drafting of papers while stopping short of representing the party as attorney of record. Under these circumstances, there is no ethical impropriety if the attorney fails to sign the pleadings.
As to the second question, the majority of the Committee is of the opinion that even if the attorney can walk the ethical tightrope required to maintain technical compliance with Canons 4 and 7, as described in the discussion of the minority position set forth below, the representation of one party in a dissolution of marriage action, after counseling with both parties, involves such a strong appearance of impropriety under Canon 9 that the proposed conduct must be prohibited. The very nature of a dissolution action creates a high degree of probability that the attorney's conduct will be scrutinized and that, in spite of full disclosure and his adherence to the safeguards noted by the minority, he could well be subjected to an accusation of unethical conduct.
A minority of the Committee is of the opinion that under certain circumstances the proposed conduct should be permitted. The minority notes that if the other party is represented by counsel at the time of the attorney's conversations with both parties, and these discussions take place outside the presence and without the consent of such counsel, there would be a violation of DR 7-104(A)(1). Assuming the second party is not so represented, the attorney must make clear his intention to represent the first party in the subsequent proceeding. EC 4-5 prohibits a lawyer from using information acquired in the course of his representation of a client to the disadvantage of that client at a later time. The attorney would run afoul of EC 4-5 if during the discussions he allowed the second party to proceed under the impression that he was a client. Therefore, the lawyer must tell the second party that he does not represent him and that he in fact intends to represent the first party in the dissolution action. Finally, DR 7-104(A)(2) would prevent the attorney from giving any advice to the second party, other than recommending that he or she secure counsel. In spite of these substantial proscriptions, the minority feels that if all of the above tests are met—the second party is not represented by counsel at the time of the discussion, the attorney clearly advises the second party that he does not represent him (or her) and that he intends to represent the first party in the subsequent action, and the attorney gives no advice to the party other than to obtain counsel—there is no impropriety under the facts presented.