Opinion 2003-1
(February 2003)

Background Facts:

The inquirer represents Husband in a divorce action which began more than two years ago. During the time the divorce action was pending, Wife has been unrepresented. Also, during that time, Wife made no claim for economic benefits, and she made no claim that she contested the divorce. As part of the court prescribed procedure for obtaining an uncontested divorce, inquirer forwarded to Wife a 3301(d) Counter Affidavit, informing her that, if she opposed the divorce or wished to claim economic benefits, she was required to file the Counter Affidavit with the court within a specified period of time prescribed by rule of court.

Having received no response from Wife, inquirer sent a "Notice of Intention to Request Entry of Divorce Decree and Praecipe to transmit record" to Wife on Day 1, informing her that inquirer would be filing the Request and Praecipe with the Court on Day 21. Inquirer sent these documents to the court, and they were stamped received by the Court on Day 23. On Day 25, inquirer received in the mail from Wife the Counter Affidavit in which, for the first time, Wife indicated that she wished to pursue a claim for economic benefits. In attempting to explain her delay, Wife informed Inquirer in the cover letter she sent with the Counter Affidavit, that she had been away on vacation and did not receive the information containing the Counter Affidavit until she returned, at which time she claimed that she promptly returned it to the Inquirer.

Question Presented:

The inquirer requests guidance on whether he or she needs to inform the court of the Wife's belated, and unfiled, Counter Affidavit seeking to claim economic benefits in the divorce action.

Analysis:

Rule of Professional Conduct 4.3 provides:

Rule 4.3. Dealing with Unrepresented Person and Communicating with One of Adverse Interest.

(c) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding.

Rule 4.3(c) turns on whether Wife "misunderstood" the role of the inquirer. The committee concludes that Wife may well have misunderstood the role of inquirer and thus the Rule requires the inquirer to correct Wife's misunderstanding. In order to do that, the Committee advises that inquirer should send the Counter Affidavit back to Wife with an explanation that she should follow the instructions inquirer previously gave her.

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.