Informal 98-5

Informal 98-5

January 30,1998
INFORMAL OPINION 98-5
Duties To The Court Owed By A Lawyer Assisting A Pro Se Litigant

Our opinion is sought on whether a lawyer assisting a pro se litigant by preparing pleadings, briefs and other materials must disclose the lawyer's identity to the court. The inquiring lawyer states that he has a contract with the State of Connecticut to provide legal services to state prisoners. The contract forbids him or his associates from filing appearances in any lawsuit. The contract provides that the lawyer will prepare briefs, complaints and other documents for submission to the court by prisoners who will proceed pro se. We are informed that the documents are "put into final form" by the lawyer.

A lawyer may provide advice to a pro se litigant and assist the litigant in the preparation of pleadings. ABA Informal Opinion 1414 (1978). The Comment to Connecticut Rules of Professional Conduct Rule 5.5 provides that "a lawyer may counsel non-lawyers who wish to proceed pro se" The Rules of Professional Conduct describe the counseling function in terms of advising the client. Rule 2.1. The lawyer's role as advocate is treated in Rules 3.1 through 3.9.

In the situation described, the lawyer's role is not limited to advising the client concerning the preparation of pleadings, or assisting the client to prepare pleadings. Nor is this a situation in which the lawyer turns over a draft to a client and loses control over its contents. Here the lawyer prepares the final version of the document which is filed in court by the client.

Authorities and one ethics opinion have questioned the propriety of a lawyer preparing pleadings and other documents for a pro se client for the practice may mislead the court and cause the court to ease procedural requirements to accommodate a pro se. See e.g., Johnson v. Board of County Commissioners, 868 F. Supp.1226, modified 85 F.3d 489 (10 Cir. 1996); ABA Informal Opinion 1414. A lawyer who extensively assists a client proceeding pro se may create, together with the client, a false impression of the real state of affairs. Whether there is misrepresentation in a particular matter is a question of fact. The committee is aware that U.S. District Court has some knowledge that a legal assistance to pro se prisoners program may be operating within the District of Connecticut. See Smith v. Armstrong, 968 F. Supp.40 (D. Conn. 1996.)

Rules of Professional Conduct 3.1, and 3.3(a) (1) and (3) impose obligations on counsel who prepare pleadings and briefs to be filed in litigation. Counsel who prepare and control the content of pleadings, briefs and other documents filed with a court could evade the reach of these Rules by concealing their identities. Similar considerations concerning the application of Rule 11 of the Federal Rules of Civil Procedure have been expressed by the court in Ell is v. State of Maine, 448 F.2d 1325 (1st Cir. 1971). "If a brief is prepared in any substantial part by a member of the bar, it must be signed by him." It is our opinion that a lawyer who prepares and controls the content of a pleading, briefer other document to be filed with a court must, in some form satisfactory to the court, inform the court that the document was prepared by the lawyer.

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