The Florida Bar

Ethics Opinion

Opinion 66-8

March 30, 1966
Advisory ethics opinions are not binding.
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.

6, 9
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.