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    Ethics: New Rules of Conduct for Limiting Representation

    The new Rules of Professional Conduct for Attorneys, effective July 1, 2007, permit lawyers to provide to clients limited scope representation - commonly called "unbundled legal services" - but impose limitations and requirements that differ from the current rules.

    Timothy J. Pierce

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 3, March 2007

    Limited scope representation" and "unbundled legal services" are phrases used to describe a situation in which a lawyer agrees with a client to provide some, but not all, of the legal work involved in a matter, with the understanding that the client will be responsible for the services the lawyer did not agree to provide. For example, a lawyer may agree with a client to draft documents in connection with a transaction but not to negotiate terms on behalf of the client. Such limited representation often is of great benefit to clients of limited means who could not afford to pay for full representation. It also is a useful model, in some circumstances, for providing pro bono legal services (for example, a walk-in legal clinic that provides legal advice but not courtroom representation).1

    Timothy 
J. 
PierceTimothy J. Pierce, U.W. 1992, is the State Bar ethics counsel and liaison to the State Bar Professional Ethics Committee.

    Wisconsin's new Rules of Professional Conduct for Attorneys (the rules) take effect on July 1, 2007. The principles embodied in the new rules generally are the same as those in the current rules, and much of the language of the new rules is very similar to that of the current rules. There are, however, some important requirements under the new rules that will directly affect lawyers who wish to provide limited scope representation to clients. This article discusses some aspects of how the new rules affect limited scope representation.

    The Rules Permit Limited Scope Representation

    New SCR 20:1.2(c) reads as follows:

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

    Thus the rules explicitly allow limited scope representation under certain circumstances.2 Comment [6] to the rule elaborates:

    "A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitation may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent."

    Limited scope representation must be reasonable under the circumstances. It is the lawyer's burden to determine whether the limitation is reasonable. That is, the limitation on the scope of the representation must not be such that the lawyer cannot provide competent representation. Comment [7] to SCR 20:1.2 explains:

    "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 telephone 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. 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. See Rule 1.1."

    This reasonableness requirement is designed to ensure that the client receives competent representation. A lawyer should be sufficiently knowledgeable about the area of law in which the lawyer seeks to provide limited services to be certain that the proposed limitation is reasonable under the circumstances. For example, an experienced family law practitioner may be able to quickly determine whether providing a brief consultation or assistance with forms is unreasonable for a matter involving complicated marital property and tax issues.

    In addition to sufficient legal knowledge, a lawyer must have sufficient understanding of the facts of a matter. A lawyer cannot determine if a limitation is reasonable and if the lawyer is able to provide competent representation without understanding the factual basis of the matter at hand. "Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and the use of methods and procedures meeting the standards of competent practitioners."3 In determining whether to undertake a proposed limited representation, a lawyer should make reasonable inquiry into pertinent facts and issues.

    While a lawyer is required to have sufficient understanding of a matter to provide competent representation, the rules do not necessarily require time-consuming and extensive factual and legal inquiry every time a lawyer seeks to provide limited scope services. Such a requirement would defeat the purpose of facilitating the provision of representation to persons of limited means. Many matters are relatively simple and straightforward and thus can quickly be assessed by the lawyer. A lawyer must be mindful, however, of those situations in which the lawyer should take the time to carefully review a matter, such as when a lawyer is asked to perform a small discrete task in a relatively complicated transaction.

    A lawyer providing limited scope representation must observe all ethical duties. In addition to the requirement that a lawyer providing limited scope representation be competent (SCR 20:1.1), all other rules apply as well - limiting scope does not limit lawyers' ethical responsibility. Even in situations in which the services provided are very limited, the lawyer must, among other things, provide conflict-free representation (SCR 20:1.7), communicate adequately with the client (SCR 20:1.4), and protect the client's interests when terminating the representation (SCR 20:1.16).

    A lawyer may have a duty to advise a client of readily apparent and relevant information, even if it falls outside the scope of a limited representation, and to advise the client to seek independent advice if appropriate. In Nichols v. Keller,4 a California court found that a lawyer representing a client in a worker's compensation matter had a duty to advise the client of a possible third-party claim even if the lawyer did not agree to represent the client with respect to such a claim. In so holding, the court noted:

    "Generally speaking, a worker's compensation attorney should be able to limit the retention to the compensation claim if the client is cautioned (1) there may be other remedies which the attorney will not investigate and (2) other counsel should be consulted on such matters. However, even when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of retention. The rationale is that, as between the lay client and the attorney, the latter is more qualified to recognize and analyze the client's legal needs. The attorney need not represent the client on such matters. Nevertheless, the attorney should inform the client of the limitations of the attorney's representation and of the possible need for other counsel."5

    These cases should not be read to impose a duty on lawyers to reach beyond the terms of a limited scope representation to provide detailed advice to a client on matters outside the defined scope. Rather, they caution lawyers to at least advise a client of possible other claims, defenses, or avenues of relief when such are readily apparent.

    The scope of a limited representation should be defined carefully, in writing, and the client's informed consent should be confirmed, preferably in writing. SCR 20:1.2(c) requires that the client's informed consent be provided before limiting the scope of a representation. SCR 20:1.0(f) defines informed consent as follows:

    "`Informed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct."

    Obtaining a person's informed consent, as defined by SCR 20:1.0(f) and its comments, has three essential elements:

    1) Explanation of facts and circumstances. With a limited scope representation, this obviously will involve an explanation of what specific services the lawyer is agreeing to provide with respect to the matter. In some circumstances, it also may be wise to explicitly note what services the lawyer will not provide.

    2) An explanation of the material advantages and disadvantages of a proposed course of conduct. Clients gain the advantage of decreased legal fees, and often some (although limited) legal representation, and these advantages need little explanation. More important here is providing an explanation of the risks of limited scope representation. In Formal Opinion 101 (1998), the State Bar of Colorado Ethics Committee discussed those risks:

    "A lawyer engaged in unbundled legal services must clearly explain the limitations of the representation, including the types of services which are not being provided and the probable effect of limited representation on the client's rights and interests. Where it is `foreseeable that more extensive services probably will be required' the lawyer may not accept the engagement unless `the situation is adequately explained to the client.' Comment, Colo. RPC 1.5.

    "The lawyer's disclosure to the pro se litigant ought to include a warning that the litigant may be confronted with matters that he or she will not understand. That, however, is the trade-off which is inherent in unbundled legal services. As noted in Alaska Ethics Opinion 93-1, in providing unbundled legal services: `the client then proceeds without legal representation into the courtroom for the hearing. The client may then be confronted by more complex matters, such as evidentiary arguments … to which he is ill-prepared to respond. The client essentially elects to purchase only limited services from the attorney and to pay less in fees. In exchange, he assumes the inevitable risks entailed in not being fully represented in court. In the Committee's view, it is not inappropriate to permit such limitations on the scope of an attorney's assistance.'

    "Examples of the `inevitable risks entailed in not being fully represented in court' include the pro se litigant's inability to introduce facts into evidence due to a lack of understanding of the requirements of the rules of evidence; the pro se litigant's failure to understand and present the elements of the substantive legal claims or defenses; and the pro se litigant's inability to appreciate the ramifications of court rulings entered or stipulations offered during the proceedings. Since many of these issues will not arise until the court proceeding begins, it will be impossible to advise the client of each and every problem which might later arise. However, the lawyer should counsel the client about those risks and problems which are typical in cases of the type presented by the client."

    3) An explanation of available options and alternatives. Often, this should be self evident, because in most cases the options will be some (although limited) representation or no representation. However, some clients may seek limited scope representation for reasons that are not financial, and for them further explanation of options may be warranted.

    SCR 20:1.2(c) does not require that a client's informed consent to limited scope representation be in writing. SCR 20:1.5(b)(1), however, requires written fee agreements, which must include the basis or rate of the fee, the costs and expenses for which the client will be responsible, and a description of the scope of the representation, if it is reasonably foreseeable that the representation's total cost (fees and expenses) will be more than $1,000. Thus, some limited scope representations will require written confirmation.

    While a client's written consent to limited scope representation is not required, there is much risk and little to be gained in failing to document the representation's scope and the client's consent. Even in law practices in which a lawyer provides limited representation to many clients, the lawyer can develop forms with fillable sections.

    It also is worth noting that, in contrast to the Nichols case discussed above, a New Jersey court rejected a malpractice claim against a lawyer who used a carefully drafted limited scope retainer agreement, holding that the court saw "no just reason in law or policy to deny attorneys practicing matrimonial law the right to assert as a defense to claims of malpractice that they were engaged under a precisely drafted consent limiting the scope of representation … if the service is limited by consent, then the degree of care is framed by the agreed service."6 This case highlights the value of written fee agreements that carefully define the scope of the representation.

    A consent to a limited scope should consider the applicability of SCR 20:4.2 to the representation. SCR 20:4.2 prohibits a lawyer representing a person in a matter from communicating with another person who the lawyer knows to be represented in the matter. How this rule applies to a limited scope client is not always clear.7 The lawyer should discuss with the client at the outset whether opposing counsel (if one exists) should communicate with the lawyer or with the client directly. When a lawyer providing limited scope representation is aware that another lawyer is involved in the matter, the lawyer should inform opposing counsel whether the client should be deemed unrepresented for purposes of SCR 4.2.

    Ghostwriting. Ghostwriting refers to the practice of a lawyer drafting pleadings, briefs, or other documents that a pro se litigant files with a court without disclosing the lawyer's role in drafting the documents. Several federal courts and ethics committees have looked with great disfavor on this practice.8 The federal courts reject ghostwriting on the ground that it is unfair. Because pleadings of pro se litigants are construed with a latitude not afforded to represented parties, ghostwriting may constitute a deliberate evasion of a lawyer's responsibilities under Federal Rule of Civil Procedure 11. In addition, concealing the lawyer's role in drafting the pleadings is deceptive and violates the lawyer's duty of candor to the tribunal (SCR 20:3.3).

    Not all courts and ethics committees agree that ghostwriting without disclosure is unethical. In Formal Opinion 502 (1999), the Los Angeles County Bar Association opined:

    "This Committee has concluded that there is no specific statute or rule which prohibits Attorney from assisting Client in the preparation of pleadings or other documents to be filed with the court, without disclosing to the court the attorney's role…

    "The filing of `ghost drafted' pleadings or documents does not deprive a judge of the ability to control the proceedings before the court or to hold a party responsible for frivolous, misleading or deceit in those pleadings. The pro per litigant, not an attorney, makes representations to the court by filing a pleading or document. California Code of Civil Procedure, §128.7 requires that every pleading, petition, written notice of motion or other similar paper must be signed by one attorney of record or by the pro per party and that by presenting a document to the court, the attorney or the party is certifying that conditions in subdivision (b) are met."

    It must be remembered that not all assistance provided to clients in limited scope representations constitutes ghostwriting. Only when the lawyer provides substantial and undisclosed assistance in drafting pleadings or other filings do the concerns expressed by the federal courts arise. In Ricotta v. State of California,9 a California court stated:

    "…it is this Court's opinion that a licensed attorney does not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom he or she may want to share specialized knowledge. Otherwise, virtually every attorney licensed to practice would be eligible for contempt proceedings. Attorneys cross the line, however, when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented in some similar form in a motion before the Court. With such participation the attorney guides the course of litigation while standing in the shadows of the Courthouse door. This conclusion is further supported by the ABA Informal Opinion of 1978 that `extensive undisclosed participation by a lawyer … that permits the litigant falsely to appear as being without substantial professional assistance is improper.' ABA Informal Opinion (1978) (quoted in Elizabeth, J. Cohen, Afraid of Ghosts: Lawyers May Face Real Trouble When They `Sort of' Represent Someone, 80 ABA J. (Dec.1997))."

    Wisconsin has yet to address the issue of ghostwriting, in either case law or ethics opinion. So how should a lawyer handle a request from a client for assistance in drafting pleadings? Given that the large weight of authority holds that a lawyer should disclose substantial assistance in the preparation of pleadings or other documents, prudence would dictate that the lawyer obtain the client's consent to such a disclosure as a condition of accepting the engagement. Disclosure need not be extensive - the State Bar of Florida recommends that such pleadings state "Prepared with the Assistance of Counsel."10 Some lawyers, particularly in federal court, may wish to use extra caution and disclose the lawyer's name and bar number.

    When disclosing assistance in drafting pleadings, the lawyer may wish to clarify to any other lawyers involved in the matter the client's status with respect to SCR 20:4.2.

    Pro Bono. As part of the Ethics 2000 revisions, the Wisconsin Supreme Court adopted the following rule: SCR 20:6.5 Nonprofit and court-annexed limited legal services program.

    (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization, a bar association, an accredited law school, or a court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

    (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

    (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

    (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

    This rule provides lawyers who want to participate in advice-only legal clinics or hotlines with protection from unintentional conflicts of interest. This is in recognition of the difficulty of checking for conflicts under such circumstances. This rule, however, does not obviate the need to obtain the client's informed consent to limited scope representation (SCR 20:1.2).

    Lawyers who undertake to appear in court on behalf of a client for only part of a proceeding should clarify the scope of retention when entering an appearance. Some states, such as Washington, have amended their rules of civil procedure to specifically allow for limited appearances by lawyers. When the lawyer fulfills the extent of the representation, the lawyer is done and need not seek the court's permission to "withdraw."11 Wisconsin's SCR 11.02 contains no similar provision, so lawyers who appear on behalf of a client for limited purposes should inform the court of the scope of the representation. Nonetheless, should a court refuse to permit a lawyer to withdraw on completion of the limited services, new SCR 20:1.16(c) requires the lawyer to continue the representation to the extent ordered by the court.

    A lawyer should be cautious about attempting to prospectively limit liability. Given the fact that lawyers providing limited scope representation face certain risks arising from seeing only part of the picture, so to speak, some lawyers may wish to seek client agreement to limit malpractice or disciplinary liability. SCR 20:1.8(h) provides:

    "(h) A lawyer shall not:

    "(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement; or

    "(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith; or

    "(3) make an agreement limiting the client's right to report the lawyer's conduct to disciplinary authorities."

    Thus, an agreement limiting malpractice liability with a client seeking limited scope representation requires that the client have separate counsel with respect to the agreement. This is not a realistic possibility in most circumstances. Any agreement limiting the client's right to file a grievance is always forbidden and such an agreement will not prevent a client from filing a grievance.

    Conclusion

    The new Rules of Professional Conduct for Attorneys contain several provisions that lawyers must be aware of when providing limited scope representation. If lawyers abide by these requirements, limited scope representation can be a valuable option for lawyers to offer to clients.

    Endnotes

    1In fact, in the ABA's Ethics 2000 Commission Reporter's Explanation of Changes for Model Rule 1.2, it was noted "…this proposal in part is intended to provide a framework for within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel."

    2By contrast, the old SCR 20:1.2 allowed lawyers to limit the "objectives" of a representation with client consent. This language was confusing because it is for the client to determine the "objectives" of a representation.

    3SCR 20:1.1, Comment [5].

    415 Cal. App. 4th 1672, 19 Cal. Rptr. 2d 601 (1993).

    5See also Greenwich v. Markhoff, 234 A.D.2d 112, 650 N.Y.S.2d 704 (1996).

    6Lerner v. Laufer, 359 N.J. Super. 201, 819 A.2d 471 (2003).

    7Other states (for example, Washington) have amended their versions of rule 4.2 to specifically address limited scope representation, and the State Bar of Wisconsin proposed an amendment to SCR 20:1.2 that would have required notice to courts and other counsel of limited scope representations. That proposed amendment, however, was not adopted by the Wisconsin Supreme Court as part of the Ethics 2000 revisions.

    8See Johnson v. Board of County Comm'rs, 868 F. Supp 1226 (D. Colo. 1994), aff'd as modified, 85 F.3d 489 (10th Cir. 1996); Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp. 1075 (E.D. Va. 1997); Ellis v. Maine, 448 F.2d 1325 (1st Cir. 1971); U.S. v. Eleven Vehicles, 966 F. Supp. 361 (E.D. Pa. 1997); ABA Formal Op. 1414 (1978); Iowa State Bar Ass'n Op. 94-35 (1995); Massachusetts Bar Ass'n Ethics Op. 98-1 (1998); Ass'n of the Bar of the City of New York Formal Op. 1987-2 (1987).

    94 F. Supp. 2d 961 (S.D. Cal. 1998).

    10See Florida State Bar Ass'n Op. 79-7 (Reconsideration 2000).

    11See Washington CR 70.1.




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