concurring:
I agree that the judgment must be affirmed, although I reach that result by a slightly different route from that taken by my colleagues. To me it is clear that the motions judge erred in denying the motion for a jury trial. It is also clear, however, *324that the error was harmless for the reasons stated in part III of the per curiam opinion. I therefore join in voting to affirm. In addition, I write separately to make some observations on a point not discussed by my colleagues, because appellant’s estoppel claim focuses attention on an aspect of this case which I find troubling.
I
In reviewing a decision on an issue committed to a trial judge’s discretion, this court must look first to see whether the judge was aware that he had that discretion and, if so, whether he purported to exercise it. “Failure to exercise choice in a situation calling for choice is an abuse of discretion ... because it assumes the existence of a rule that admits of but one answer to the question presented.” Johnson v. United States, 398 A.2d 354, 363 (D.C.1979) (citation omitted). In this case I am convinced that the judge who ruled on appellant’s motion for a jury trial abused his discretion by not recognizing that he had any discretion to grant the motion.
As the per curiam opinion points out, neither the motion for a jury trial nor the opposition to that motion made any reference to Super.Ct.Civ.R. 39(b). Furthermore, no hearing was held on the motion, and the order denying it stated no reasons for the denial. If that were the entire record, it would be difficult to find an abuse of discretion.1 The order denying the motion for reconsideration, however, makes plain that the judge was unaware that he had any discretion under Rule 39(b) to rule in appellant’s favor. The judge concluded that appellant’s “failure to file [his] request for a jury trial timely as required by [Rule] 38(b) constituted a waiver under Rule 38(d) of his right to a trial by jury_” The only reasonable interpretation I can place on this language is that the judge apparently viewed the waiver under Rule 38(d) as an absolute bar to a jury trial. Rule 39(b), which empowered the judge to grant a jury trial despite the waiver, is not even mentioned; instead, the order clearly implies that the waiver tied the court’s hands. I cannot help concluding, as this court held in Johnson, supra, that the judge’s failure to recognize that he had discretion was itself an abuse of discretion. Nevertheless, that abuse does not require reversal because, as my colleagues have stated, supra at 323, “there was no role for a jury to play in this case.”
II
At the time the complaint was drafted for appellant by appellees’ attorney, appellant was not represented by counsel. This situation presents at least the possibility of an ethical violation. Disciplinary Rule 7-104(A) of our Code of Professional Responsibility provides in part:
During the course of his representation of a client a lawyer shall not:
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(2) Give advice to a person who is not represented by a lawyer, 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.
Whether the drafting of a complaint, in the factual context of this case, constitutes “giving advice” to an unrepresented adversary is a question which need not be decided here. There is no contention that the conduct of appellees' counsel was in any way unethical. On the contrary, from the record it appears that the parties reached an agreement to settle the case and then turned to the attorney to perform the ministerial act of preparing and filing the complaint. In Stamenich v. Markovic, 462 A.2d 452, 456 n. 8 (D.C.1983), this court concluded on similar facts that there was no conflict of interest.
*325Even so, DR 7-104(A)(2) should at least cause an attorney to hesitate and pause before drawing up a complaint to be filed in the name of an unrepresented party against that attorney’s own client. The fact that when the complaint was filed, all the parties may have regarded this proceeding as a “friendly” suit does not dispel the shadow cast by the disciplinary rule; adversaries in a legal action should not be quite so friendly. If it is common practice for the Superior Court, because of D.C. Code § 21-120(a),2 to accept pleadings from unrepresented parties which have actually been prepared by counsel for their opponents,3 the court may wish to consider an alternative procedure for complying with the statute — such as, for example, the appointment of a guardian ad litem to protect the interests of the unrepresented minor child. Any practice whereby a defendant’s attorney actually drafts his unrepresented adversary’s complaint is fraught with obvious potential for abuse. That there was no abuse in this particular case does not abate my concern.
I reiterate that on the record in this case there is no reason to believe, and I do not believe, that appellees’ counsel acted improperly. In another case the record may not be so clear, and the consequences may be more serious.
. The long delay by appellant's counsel in filing his motion for a jury trial — more than a year and a half after he entered his appearance— would, on this record, provide ample basis for denial of the motion.
. See footnote 1 of the per curiam opinion, supra at 320.
. Counsel apparently felt obliged under D.C. Code § 21-120(a) to seek judicial approval of the proposed settlement. Although this statute does not expressly require judicial scrutiny of settlements reached before a claim is formalized by the filing of a civil action, a wise attorney would be well advised to seek court approval of any settlement involving a minor child, even if no other court action is contemplated. By settling the child's claim through the filing of a civil action, as was done in this case, the attorney would obtain a judgment and thereby foreclose any later action by or on behalf of the child.