Legal Ethics Opinion No. 1464

Communication With Adverse or Unrepresented Parties--City
Attorney: Government Attorney Providing Services to Constituents

You have provided the committee with two sections of the charter
of a Virginia city, both of which are related to the duties of
the individual employed as city attorney.  The first of these
sections delineates the role of the city attorney and indicates
that he 

     shall be the legal advisor of and attorney and counsel for
     the city, and for all officers and departments thereof in
     matters relating to their official duties.  

The second section you provide indicates that 

     [b]efore any ordinance or amendment proposed by popular
     petition shall be submitted to the [city] council, it shall
     first be approved as to form, by the city attorney, whose
     duty it shall be to draft such proposed ordinance or
     amendment in proper legal language, and to render such other
     service to persons desiring to propose such ordinances or
     amendments as shall be necessary to make the same proper for
     consideration by the council.

You further indicate that where ordinances or amendments are
proposed by popular petition, they universally seek to change
policies or actions of the Council.  

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the city attorney to provide
petitioners with the legal assistance contemplated by the second
charter provision cited while continuing to carry out his duties
to the council. 

The committee cautions that it is not empowered to provide
interpretations of statutes or other legal provisions. 
Nevertheless, the committee is of the view that several
disciplinary rules contained within the Virginia Code of
Professional Responsibility are relevant to the question you
raise.  The appropriate and controlling disciplinary rules
relative to your inquiry are DR 7-l03(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-l03(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-l5 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.    See LEOs #644, #689,
#lll2.  The committee has previously found, for example, that it
is not improper for an attorney to obtain the endorsement of a
consent order by an unrepresented defendant in a divorce matter,
to draft and forward a separation agreement to an out of state
unrepresented spouse, or to prepare a petition for the court's
approval of a settlement on behalf of an unrepresented personal
representative in a wrongful death action.  See LEOs #890, #876
and #l344.  In each of those circumstances, however, the
committee found it to be imperative that the attorney providing
those documents (a) refrain from offering any advice to the
unrepresented party except the advice to consult with counsel,
and (b) inform the unrepresented party that the attorney
represents the interest of his client which may be adverse to
those of the unrepresented party.  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
that the acts of approving ordinances and amendments as to form,
drafting such proposed documents in proper legal language, and
rendering other services so as to make them proper for
consideration by the council, 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, 43l
N.E.2d 229, 23l (Mass. l982).  

The committee opines that where the city attorney is functioning
as a scrivener for citizens of his jurisdiction, such service
does not create an attorney-client relationship.  Thus, since no
such relationship arises, and where the city attorney has
assiduously refrained from advising or misleading the
unrepresented individuals for whom petition drafting has been
performed as to the law or the facts, it would not be violative
of the Code of Professional Responsibility for the city attorney
to assist in the drafting of such petitions or ordinances.  

Committee Opinion
May 11, 1992