Posted on Wednesday, December 12th, 2018 at 8:32 am
Limited scope representation is a relatively new and somewhat controversial idea in the legal profession. Some attorneys are hesitant to provide limited scope representation because they are concerned about the ethical ramifications of entering into an agreement that limits their representation of a client and leaves the untrained client to perform some (or even most) of the duties traditionally reserved for attorneys. Generally, the influx of limited representation has developed due to the growing costs of legal services many people cannot afford. Proponents of limited scope representation believe clients are better off with the limited representation they can afford, as opposed to attempting to face their legal hurdles entirely by themselves.
As limited representation becomes more common, attorneys turn to their state bar associations in search of guidance on how to enact this model of legal services.The Kentucky Bar Association has not issued specific guidance on limited scope of representation of unsophisticated clients in areas such as family law or defense of collection activities. Kentucky’s SCR 3.130(1.2)(c) does specifically allow that, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” However, paragraphs six and seven of the Supreme Court’s 2009 commentary paint only the broadest outlines of what might be considered a reasonable limitation. For example, paragraph six states that when representing an insured, one’s representation of the insured may be limited to the issue of coverage, leaving the insured to determine appropriate damages on its own.
However, may a Kentucky attorney contract only to draft an Answer and conduct initial discovery, but no more? An ethics opinion from 1991, E-343, does give authority to draft only initial pleadings, so long as the attorney does not give the appearance that the claimant is entirely unrepresented, stating, “The overriding consideration should be the recognition and satisfaction of the legal needs of indigent persons. Artificial barriers should not be set up in the name of legal ethics.” In other words, drafting an answer is only ethical so long as the reservations in KBA Opinion E-343 are followed, but if discovery is also drafted, the attorney has entered an ethically gray area.
Bearing that in mind, may a Kentucky attorney agree to pursue a divorce by agreement, but cease representation if property settlement is disputed? And if a Kentucky attorney contracts only to represent in pre-trial litigation but not in trial, is withdrawing on the eve of trial unethical? Both the rule and commentary fail to provide the detail necessary to answer these questions.
The neighboring bar associations in Tennessee and Indiana have yet to address this issue and do not have information on the issue available on their websites. However, other states in the region, specifically Ohio and Missouri, have addressed the issue to provide guidance to their attorneys on how to competently serve their clients through limited representation, while protecting themselves from potential ethical hurdles that this model of legal representation may present.
Ohio Dipped Its Toe in the Limited Scope Representation Waters…
An article posted on the Ohio Bar Association’s website addresses the issue of limited scope representation, starting with the issue of ethics.When an attorney considers expanding his or her practice to include a new area or new service, one of the first concerns is how to ethically provide this service. Like Kentucky, the Ohio Rules of Professional Conduct do allow limited scope representation, pursuant to Prof. Conduct R. 1.2(c).This rule is an adoption of the Model Rules for Professional Conduct and a similar version of this rule appears in the rules governing attorney conduct in most states. Ohio’s rule allows limited representation of new and existing clients provided the limitation is reasonable and communicated to the client, preferably in writing (although written consent is not required).
According to Ohio Judge, Jeffrey Hooper, more than 50 percent of the cases in his court included an unrepresented party. Judge Hooper says it could be a “win/win” if more attorneys adopt the limited scope representation model because that allows clients to receive representation they can afford and attorneys may receive fees for providing this representation. No one is placed in a worse situation by the enactment of limited representation, according to Judge Cooper, if it is done correctly.
Ohio, which has a non-mandatory state bar association, adopted a piecemeal approach to incorporating limited scope representation. For example, the Sixth District Court of Appeals in Toledo has an official program for involving limited scope representation at the appellate mediation stage, while the First District in Cincinnati has not taken up limited scope representation at either the appellate court or bar association level. However, the Ohio State Bar Association (OSBA) adopted ABA findings that unbundling the following legal services can be permissible—and even desirable—if the client’s informed consent is obtained:
- Advising on court procedures and courtroom behavior
- Coaching on strategy or role playing
- Collaborative lawyering
- Conducting legal research
- Reviewing documents
- Drafting documents, contracts and agreements
- Drafting pleadings, briefs, declarations or orders
- Making limited appearances
- Coaching for or participating in online, telephone or in person dispute resolution
- Organizing discovery materials
- Preparing exhibits
- Providing legal guidance or options
- Assisting with service
- Appearing at a hearing
- Negotiating on a client’s behalf.
The Ohio State Bar Association’s recommendation list gives much clearer boundaries for what a la carte offerings may be ethically made, which is a boon for both attorneys and judges encountering limited scope representation for the first time. If you want to know more—a lot more—about the ABA’s findings that were adopted by the OSBA, their 149-page Handbook on Limited Scope Legal Assistance on limited scope representation is available online.
… And Missouri Dove Right In
Of Kentucky’s neighbors, Missouri seems to be at the forefront of enabling its attorneys to provide limited representation, while also providing the guidance to enable them to do it competently and ethically. First, Missouri’s Rule 4-1.2(c) requires agreements to limit representation to be in writing and signed by the client, a brighter line rule than those of Ohio and Kentucky. The Supreme Court of Missouri and the Missouri Bar Association established a commission in 2002 to examine pro se litigation in the state. That committee released a report on limited scope representation that can be of great guidance to Missouri attorneys in implementing limited representation. This report addresses many issues Missouri attorneys face when providing limited scope representation and even provides an example of a limited representation contract for attorneys to use when unbundling their legal services. These are the most affirmative steps taken by a state Supreme Court and bar association to provide its attorneys with the information and resources they need to provide competent limited representation to clients who need it the most.
The Missouri Bar Association also provided guidance to attorneys to aid the determination of when limited scope representation is practical and ethical. The Missouri Bar Association advised that attorneys who deal in limited scope representation provide potential clients with questionnaires that will assess that individual’s ability to represent himself or herself to the degree the limited scope representation requires. Further, it set guidelines for the endpoint of limited scope representation, with specific requirements for how an attorney is to withdraw.
Finally, Missouri’s Rule of Civil Procedure 55.03 has a more detailed, more explicit list of activities expressly allowed under the rules, giving lawyers more guidance on whether a specific scope of limited representation is permissible. Attorneys in Missouri are expressly permitted: a) to draft documents to be filed in court without signing said documents; b) to appear and withdraw from representation at points of litigation expressly set forth in the contract, without fear of being held over into a trial without hope of payment from the client, and; c) to rely upon the self-represented party’s representation of the facts when drawing up legal documents or performing legal research. Missouri’s Rule 55 serves as a helpful list of dos and don’ts that give clear, logical guidance to attorneys seeking to engage in limited scope representation. We could find no other neighboring state with a better system in place.
The legal market, like any other, has an invisible hand. As market pressures such as rising tuition and the rising cost of litigation force attorney’s fees higher, new solutions emerge that resolve disparities between the cost of supplying legal services and the ability to pay by litigants demanding those services. Limited scope representation is the most relevant, prevalent and inevitable of those solutions. It is here to stay. Until the Kentucky Supreme Court modifies SCR 3.130(1.2)(c), or until appellate court rulings interpret how it is applied to the kind of limited scope representation described above, practitioners interested in providing such services should adhere to the ABA Handbook. Since SCR 3.130(1.2) (c) is modeled from the ABA rules of professional conduct), and review the specific programs created in Ohio and Missouri to see if they can adopt similar practices in their local Kentucky courts. By doing so, you should be able to help more people, stay ethically sound and grow your law practice.