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    Ethics: Ethics 2000: Unbundling Legal Services

    The controversy over the unbundling of legal services generally focuses on whether a lawyer may properly limit the lawyer's responsibilities of diligence, competence, and zealous representation of a client by an agreement with the client that specifies the lawyer's limited services.

    Timothy Pierce

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    Wisconsin Lawyer
    Vol. 78, No. 2, February 2005

    Ethics 2000:
    Unbundling Legal Services

    The controversy over the unbundling of legal services generally focuses on whether a lawyer may properly limit the lawyer's responsibilities of diligence, competence, and zealous representation of a client by an agreement with the client that specifies the lawyer's limited services.

    by Timothy J. Pierce

    Timothy PierceTimothy J. Pierce, U.W. 1992, is the State Bar ethics counsel and liaison to the Professional Ethics Committee. This column was written in conjunction with Dean Dietrich of the committee.

    Question

    I have heard a lot about unbundling legal services. What does it mean?

    Answer

    There has been a lot of discussion about the unbundling of legal services, especially as the legal profession and society try to address the difficult problem of providing legal services to low-income people. There is no precise definition of the unbundling of legal services; the concept is a sharing between the lawyer and the client of responsibility for the representation, with the lawyer doing some activities and assuming responsibility for those activities and the client assuming responsibility for other activities involved in the representation. For example, the client may do the investigative work related to an automobile accident or may contact witnesses directly to obtain information to give to a lawyer. In other cases, the lawyer may assist the client in preparing a complaint or the answer to a complaint but not participate in the trial.

    Several ethical questions arise when a lawyer provides legal services in a limited fashion that results in the unbundling of the legal services that a lawyer normally provides. Of paramount importance to the lawyer is whether the lawyer will be held to the same level of diligence and competence if providing only limited representation to a client compared to an attorney who has full responsibility for the representation. Several states' ethics opinions, in weighing full diligence and competence issues, have held that a lawyer may not unbundle legal services, even if the client wishes limited representation.

    Petition to amend Chapter 20. A number of new changes to the Rules of Professional Conduct are being considered that would affect the unbundling of legal services. The foremost development is the petition to the Wisconsin Supreme Court to amend Chapter 20 resulting from the changes to the Model Rules of Professional Conduct initiated by the American Bar Association and known as "Ethics 2000." The proposed rule change to SCR 20:1.2 - Scope of Representation would modify a current paragraph to read as follows:

    "(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent."

    The changes to the SCR 20:1.2 Comment provide further explanation of the proposed change. The Comment reads in part:

    "Agreements limiting scope of representation.

    Court to Hold Public Hearing Feb. 17 on New Rules of Professional Conduct

    The Wisconsin Supreme Court will hold a public hearing on Feb. 17, 2005, to consider the Ethics 2000 petition. For more information on Ethics 2000, please see these resources:
    wisbar.org/newscenter (reports on Board of Governors' consideration of the Ethics 2000 petition and related issues) Wisconsin Lawyer online (coverage in December 2004), includes article on GAL provisions and Supreme Court Order 04-07 setting the public hearing and providing the petition; and November 2004, article on Wisconsin Supreme Court Ethics 2000 Committee's key proposals)

    "[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. . . .

    "[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. . . .

    "Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

    Lawyers' role and responsibility during limited representation. The State Bar Legal Services Committee has also looked at the issue of unbundling of legal services and believes that the proposed rule change identified above should be expanded to clarify the role and responsibility of a lawyer during a limited representation. The Legal Services Committee proposes the following changes to SCR 20:1.2 - Scope of Representation:

    "(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

    "(d) A lawyer who appears in court on a limited basis for a client who is otherwise unrepresented must give written notice to the court and all other parties of the tasks for which the lawyer is engaged and must promptly notify the court and all other parties in writing of the termination of the lawyer's appearance in the case upon the completion of such tasks." (New language.)

    Circumstances related to limited representation. The committee also proposed additional language to the Comment to SCR 20:1.2 to further clarify the circumstances under which the provision of limited representation is permissible:

    "Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.

    "A lawyer and client may agree that the representation will be limited to providing assistance out of court, including providing advice on the operation of the court system and drafting pleadings and responses. If the lawyer assists a pro se litigant by drafting any document to be submitted to a court, the client is not obligated to reveal the identity of the lawyer and the lawyer is not obligated to sign the document. However, to avoid the impression that the litigant is acting without the assistance of counsel, such a document must state that it was prepared with the assistance of counsel.

    "A lawyer and client may agree that the lawyer will represent the client in court at a single hearing or trial, or during proceedings regarding a discreet issue in the litigation. For example, a lawyer and client may agree that the lawyer will represent the client in court at a hearing regarding child support and not in any other hearings. The lawyer shall communicate to the client the specific boundaries and limitations of the representation so that the client is able to give informed consent to the representation. If the attorney and client agree to limit the scope of the representation, the lawyer shall advise the client, as provided in SCR 20:4.2, that another lawyer is not barred from communicating directly with the client about subjects outside the scope of the limited representation."

    Communication with represented person. The Legal Services Committee also proposes a change to SCR 20:4.2 regarding "communication with person represented by counsel" to clarify the way that communication should be handled when a lawyer is involved in providing limited representation to a client. The additional language proposed by the Committee in SCR 20:4.2 is:

    "(b) A lawyer shall not communicate with a party the lawyer knows to be represented under a limited representation agreement in accordance with SCR 20:1.2 about the subject matter of the limited representation, but it does not bar communication about matters outside the limited scope of representation."

    The concept of the unbundling of legal services is still controversial even though many lawyers actively involve their clients in performing activities directly related to representation of the clients. The controversy over the unbundling of legal services generally focuses on whether a lawyer may properly limit the lawyer's duties and responsibilities of diligence, competence, and zealous representation of a client by an agreement with the client that the lawyer will only perform limited services as part of the representation. Many jurisdictions suggest that the unbundling of legal services does not and may not limit the duties the lawyer owes to the client to provide the highest level of representation.

    As the debate on the need to provide legal services to low-income people continues to rage, it is likely that the bar will see greater clarification of the roles and responsibilities of lawyers when providing limited representation by agreement to a client. The Wisconsin Supreme Court may provide further guidance to Wisconsin lawyers as it considers the petition to revise the various rules in Chapter 20 of the Supreme Court Rules.


    Opinions and advice of the Professional Ethics Committee, its members, and assistants are issued pursuant to State Bar Bylaws, Article IV, Section 5. Opinions and advice are limited to the facts presented, are advisory only, and are not binding on any court, the Office of Lawyer Regulation, or State Bar members. Attorneys with questions on professional ethics issues may contact the Ethics Hotline at (800) 444-9404, ext. 6168; or (608) 250-6168 (all day Wednesday); and (608) 629-5721 on Monday, Tuesday, Thursday, and Friday mornings. Send written requests for Professional Ethics Committee opinions to the Professional Ethics Committee, c/o org tpierce wisbar Timothy Pierce, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.




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