FLORIDA BAR ETHICS OPINION
Advisory ethics opinions are not binding.
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
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.
EC 4-5, DR 7-104(A)(1), (2); Canon 9
We are presented with the following questions:
(1) Is it ethical for an attorney to prepare pleadings without signing as
attorney for a party?
(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
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.