Ethics Opinion 108

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #108 – 06/10/1969 (12-69)
Topic:  Participation in foreign litigation without admission to foreign bar.
Digest:  The drafting and filing of an answer by a New York attorney in an uncontested Florida divorce action without admission to the Florida bar

QUESTION

The client of a New York attorney is a defendant in a Florida divorce action.  The defendant has agreed to file an answer in order to give the Florida court valid jurisdiction, but not to appear at the trial or otherwise contest the action.Is it proper for the New York attorney, who is not admitted to the Florida bar: (1) to participate in such an arrangement; (2) to draw and mail an answer to the Florida court based on a form he has obtained from the plaintiff’s attorney; and (3) to charge his client for such services?

OPINION

This Committee does not pass on questions of law, or the meaning and effect of Canons of Ethics of jurisdictions other than New York.  With this in mind, it is the opinion of the Committee that:
1.         It is not improper for an attorney to participate in an agreement for a defendant not to defend a divorce action if there is no misrepresentation of facts or fraud on the Court and his client’s best interests will be served thereby.  It is assumed that the agreement is not unlawful in Florida. If the action is commenced on valid grounds, facilitation of the decree by a defendant is not improper, and a New York attorney is not subject to criticism for participating in the lawful dissolution in another jurisdiction of the marriage of a NewYork citizen (N.Y.City 96; N.Y.City 179; N.Y.City 241; N.Y.City 593; N.Y.County 100; N.Y.County 289; Drinker, Legal Ethics, pp. 122-126).
2.         Assuming that no Florida law or provision of the Florida Canons of Ethics is violated thereby, a New York attorney can properly draw an answer on behalf of a New York defendant and mail it to the Florida court, so long as it contains no false allegations or misrepresentation of facts, and is not collusive.
3.         Under these conditions, a New York attorney may charge his client a fee for such services.In reaching these conclusions, the Committee is of the opinion that the decisions reached in Spivak vs. Sachs, 16 N.Y. 2d 163 (1965), and Spanos vs. Skouras Theatres Corp., 364 Fed 2d 161 (1966), are distinguishable.

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