LEO 1344

LEO: Communication with Unrepresented LE Op. 1344

Communication with Unrepresented Party-Wrongful Death

Action: Defense Counsel Preparing a Petition

for the Court's Approval of a Settlement

on Behalf of the Unrepresented

Personal Representative.

May 31, 1990

You indicate that your firm frequently serves as defense counsel. In

addition, you indicate that you currently have two open files in which the

insurance company has settled the case directly with the decedent's

personal representative and forwarded the file to defense counsel for the

purpose of preparing the necessary documentation to secure court approval

pursuant to Virginia Code § 8.01-55. Furthermore, you have advised that

the Code provides that approval of a wrongful death action can be secured

on a petition of the personal representative. In the cases you describe,

the decedent's personal representative is unrepresented by counsel.

You have asked the Committee to consider the propriety of a defense

lawyer preparing a petition for the court's approval of such a settlement

and an order granting approval, under the circumstances you describe where

the personal representative is not represented by counsel.

The appropriate and controlling disciplinary rules to the issue you have

raised are DR:7-103(A)(2) which prohibits a lawyer from giving advice to

a person unrepresented by counsel, other than the advice to secure counsel,

if the interests of such person are or have a reasonable possibility of

being in conflict with the interests of his client; and DR:7-103(B)

which mandates that, when dealing on behalf of a client with a person who

is not represented by counsel, a lawyer shall not state or imply that the

lawyer is disinterested, and shall make reasonable efforts to correct any

misunderstandings as to that role on the part of the unrepresented person.

Further guidance is available in Ethical Consideration 7-15 [ EC:7-15]

which states that, if an adverse party "is not represented by counsel, a

lawyer representing another may have to deal directly with the

unrepresented person; in such an instance, a lawyer should not undertake

to give advice to the person who is attempting to represent himself,

except that he may advise him to obtain a lawyer." (emphasis added)

The Committee has repeatedly opined that in certain circumstances it is

not improper for an attorney to prepare particular documents for use by an

adverse party so long as such preparation is limited to an administerial

function. In the area of domestic relations, for example, it is not

improper for an attorney representing one spouse to prepare acceptance of

service of process, with or without waiver of notice, for signature by an

unrepresented defendant spouse. (See LE Op. 644, LE Op. 689, LE Op.

1112, Virginia Code § 20-99.1:1) In addition, it is not improper for an

attorney to obtain the endorsement of a consent order by an unrepresented

defendant in a divorce matter or to draft and forward a separation

agreement to an out of state unrepresented spouse. (See LE Op. 890 and

LE Op. 876) In each of those circumstances, however, it is imperative that

the attorney providing those documents (a) refrain from offering any

advice to the unrepresented spouse except the advice to consult with

counsel, and (b) inform the unrepresented spouse that the attorney

represents the interest of his client which may be adverse to those of the

unrepresented spouse.

The Committee recognizes that the definition of "advice," particularly in

the context of dealing with an unrepresented party, may be a fluid

concept. In the circumstances you describe, the Committee is of the belief

generally that "the acts of drafting documents and presenting them for

execution [by the personal representative], without more, do not amount to

'advice,' and are proper as long as the attorney does not engage in

misrepresentation or overreaching." ( Dolan v. Hickey, 431 N.E.2d 229, 231 (

Mass. 1982)) Specifically, the Committee opines that in a case where a

settlement must be approved by the court, and where defense counsel has

assiduously refrained from advising or misleading the unrepresented party

about the law or the facts, it would not be improper for defense counsel

to prepare a settlement agreement for execution by the opposing party

provided that the court is informed of such preparation and assuming that

the court may make its own inquiry into the unrepresented party's

agreement. The Committee recommends that appropriate indications of the

nature of the representation or lack thereof, as well as indications that

you have advised the unrepresented party to seek counsel, be reduced to

writing and incorporated into the agreement documents. (ABA Formal Opinion

No. 102. See also ABA Informal Opinion No. 1269; In re Bauer, 581 P.2d 511,

515 (Ore. 1978))

To the extent that this opinion is inconsistent with prior LE Op. 1019,

the earlier opinion is overruled.

Committee Opinion May 31, 1990

CROSS REFERENCES