Opinion #89. Drafting Complaint Signed by Pro Se Client

Issued by the Professional Ethics Commission

Date Issued: August 31, 1988

Question

The Grievance Commission has requested an advisory opinion as to whether an attorney acted unethically under the following circumstances. The attorney in question was consulted by a woman regarding the possibility of initiating litigation alleging discrimination by her former employer. Although the claimant’s complaint had been denied by the Human Rights Commission, the attorney believed that her claim was not frivolous. Indeed, her employer had previously made an offer of settlement. Nevertheless, the attorney declined to accept the case because he felt that it could be difficult to prove and that the claimant would not be an easy person to work with. He, therefore, recommended other counsel and urged her to file her complaint promptly to avoid any problem with the statute of limitations.

The claimant returned in a week reporting that she had been unable to find other counsel. She was distressed that her claim might be barred by the statute of limitations. The attorney again declined to undertake the representation, but agreed for a fee to prepare a complaint which the claimant could sign herself and file to protect her rights. Subsequently the propriety of the attorney’s actions were questioned by a Superior Court Justice. The attorney then requested an opinion from the Grievance Commission as to whether he had in any respect acted unethically. The Grievance Commission has, in turn, asked this Commission pursuant to Bar Rule 11(c)(1) to determine whether any Bar Rule has been violated.[1]

Opinion

It is the opinion of the Commission that, under the circumstances presented, the attorney did not act unethically in agreeing with the client to limit the extent of his representation to the preparation of the complaint. Indeed, if the attorney had declined to prepare the complaint, the action might have been barred by the statute of limitations. There is no suggestion that the complaint, as drafted by the attorney, was frivolous; nor does it appear from the facts presented that the complaint was prepared “merely to serve to harass or maliciously injure another.” Bar Rule 3.7(a).

Since the lawyer’s representation of the client was limited to preparation of the complaint, the lawyer was not required to sign the complaint or otherwise enter his appearance in court as counsel for the plaintiff, and the plaintiff was entitled to sign the complaint and proceed pro se. At the same time, however, the Commission notes that a lawyer who agrees to represent a client in a limited role such as this remains responsible to the client for assuring that the complaint is adequate and does not violate the requirements of Rule 11 of Maine Rules of Civil Procedure.


Footnote

[1] Since this request comes from the Grievance Commission, not from an individual lawyer, the Professional Ethics Commission’s practice of not opining on past conduct (see Opinion No. 67) is not applicable.


Enduring Ethics Opinion