March 23, 1972
Ethics Opinon 1972-6
SUBJECT: IN PRO PER REPRESENTATION ADVICE BY LEGAL AID SOCIETY
The publicly funded Legal Aid Society counsels poor clients in the mechanics of obtaining an in pro per dissolution of marriage in those cases where the work load of the staff will not permit a staff attorney to handle the matter in a normal professional manner. Counselling is limited to matters which appear to be in the default category. Is such counselling unethical?
Where the end result is a dissolution of marriage in a default situation, the parties are defined as poor, there are no substantial questions about custody or visitation rights, and the legal staff is unable to handle the matter in a normal professional manner, then it is not unethical for an attorney employed by a publicly funded agency to advise a potential petitioner in how to obtain an in pro per dissolution.
LAW REVIEWS, TREATISES, ETC.
The following sources have been considered in regard to the question presented:
Drinker, Legal Ethics;
California Business & Professions Code, Section 6000 et seq.;
1 Witkin, California Procedure, Page 1, et seq. ("Attorneys");
16-1 Villanova Law Review (1970-71);
20-1 The American University Law Review "Legal Aid Symposium";
Goldberger, Legal Aid Divorces--A Practical Approach (August 1970);
And a volume setting forth certain rulings of the American Bar Association, etc.
The answer to the question presented should turn on broad issues of public policy, such as access to the courts for poor people, the relation of the Bar to the community, and the availability of funding for the legal agency involved.
The Law Review articles cited above discuss the fact that poor people have not been able to get divorces and that the courts have been closed to them. This situation has led to separation of married couples without divorce and the formation of new extralegal relationships.
It is the duty of counsel to defend an indigent person accused of crime. Drinker, supra 52. It would seem to be the duty of attorneys today, individually through Bar Associations, or otherwise, to provide other legal counselling or services for the poor. In cases where the legal work to be done is so routine that it might be considered merely administrative in manner, advice on "how to do it" should be provided so that the client's desire for dissolution can be achieved without the employment of additional lawyers on the public payroll. This is especially true in cases were a default situation exists, there are no contentions over property or alimony, and the granting of a decree of dissolution of marriage is a foregone conclusion. The problems that arise in most current domestic battles (i.e., over alimony, property, and perhaps custody) are absent in such cases under consideration.
Practicing lawyers should have little or no concern over loss of income in these matters since we are dealing with cases that contribute little or nothing to their present incomes.
From a practical standpoint the question is somewhat moot because under liberalized divorce laws the public will have--and in certain instances should have--divorce without lawyers. A new book of dissolution procedures by a California lawyer with copies of forms and illustrated methods of filing them has been published and can be obtained at bookstores for five or six dollars. There was also a prominent article about this book and the attorney who wrote it in a recent edition of the Los Angeles Times.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: The committee reviewed this opinion on October 13, 1976 and found that the conclusion is valid under applicable law. The Committee would like to add, however, that it ought to be made clear to the person seeking legal aid that the counselling is limited to the mechanics of obtaining an in pro per dissolution and that his or her case is not being accepted.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.