Inside Track: Lawyer a la carte: Expanded use of limited-scope representation on the horizon?:

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    The number of pro se litigants is increasing in Wisconsin courts. More clients can't afford full representation from lawyers. In the near future, lawyers who wish to offer "unbundled" legal services to Wisconsin residents could have more guidance in doing so.

    Joe Forward

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    Lawyer a-la-carte: Expanded use of limited scope representation on the horizon?

    Aug. 17, 2011 – Ever heard of “unbundled” legal services or limited-scope representation? It allows clients and lawyers to agree on a lawyer’s more limited role in lieu of full representation. Since the Wisconsin Supreme Court adopted the ABA’s Model Rule 1.2(c) in 2007, SCR 20:1.2(c) has provided express authorization for this type of legal practice.

    Expanding limited-scope representation has the potential to provide pro se litigants with affordable access to lawyers and improve court efficiency, according to a recent report by a subcommittee of the Wisconsin Supreme Court’s Planning and Policy Advisory Committee (PPAC).

    The subcommittee identifies appropriate programming and initiatives for expanding acceptance and awareness of limited-scope representation in Wisconsin. In the next phase, the subcommittee of judges and lawyers will begin to develop specific plans for proposed rules, statutes, and education.

    The hope is that limited-scope representation can address challenges created by the increased numbers of pro se litigants in the courts, and give lawyers better guidance and support, according to Bayfield County Circuit Court Judge John Anderson, co-chair of the subcommittee that generated the PPAC report.

    “The philosophy here is, as long as it’s going to happen, let’s try and straighten the road out and make it easier for the legal profession to provide this service,” Judge Anderson said.

    Mutual interests align

    Judge John Anderson

    Bayfield County Circuit Court Judge John Anderson

    As a result of economic downturn, families have less money to spend at a time when their legal needs remain at least the same or are rising. The result is more people are using inappropriate legal documents purchased through online companies to file pleadings, affidavits, and other documents. At the same time, lawyers face economic challenges of their own in finding new clients willing and able to hire an attorney. Many self-represented litigants are unaware that they have the option of hiring an attorney to provide limited assistance. It’s a match based on mutual interest that would benefit everyone involved, Judge Anderson says.

    As a 2010 New York Times editorial noted, the economic crisis broadened the population base that cannot afford attorney services but don’t qualify for legal aid. In Wisconsin, that base widened further through elimination of funding for civil legal services.

    The subcommittee report notes that limited-scope representation “has the potential to improve court efficiency and effectiveness” by giving pro se litigants greater access to the legal expertise lawyers provide.

    Although Wisconsin’s Rules of Professional Conduct, 1.2(c), allow lawyers to provide limited-scope representation “if the limitation is reasonable under the circumstances and the client gives informed consent,” the subcommittee will prepare additional changes to address some of the practical issues that lawyers, clients, and judges experience in this type of practice. The changes will be based on best practices developed and implemented by courts and bar associations in other states.

    “The subcommittee believes that lawyers would feel more comfortable with the practice of limited scope representation if there are formal rules that support it and provide guidance on best practices,” said Milwaukee attorney Mary Wolverton, a PPAC subcommittee member.

    The PPAC subcommittee recommends amendments to the Wisconsin Rules of Civil and Appellate Procedure and the Rules of Professional Conduct to address a number of issues.

    Judge Anderson said the subcommittee used the benefit of other state experiences to review topical areas like ghostwriting, informed consent, communication between parties, and the effects of limited-scope representation on malpractice insurance.

    How is limited-scope representation currently used?

    The most important thing for lawyers, clients, and judges to remember is that limited-scope representation is not new. For example, Judge Anderson says ghostwriting – the drafting of pleadings or other documents for pro se litigants without disclosure to the court – is a common form of limited-scope representation. In fact, a judicial survey conducted by the subcommittee revealed that 68 percent of responding judges have seen it the last year.

    Several federal jurisdictions are opposed to ghostwriting, according to a recent article by State Bar Ethics Counsel Tim Pierce. Other jurisdictions allow ghostwriting with or without disclosure of the attorney’s involvement so long as a lawyer is not making misrepresentations or deliberate concealments.

    The subcommittee recommends a rule change that would require only limited disclosure when a legal document is prepared with assistance of a licensed lawyer, but would not require that the individual lawyer be identified.

    “In some cases, it’s obvious that an attorney somewhere produced the documents,” he said. “If it was prepared by a licensed Wisconsin attorney, there should be some type of acknowledgement.”

    He says lawyers may be reluctant to disclose identification in limited-scope representation situations because their work product is under the control of the pro se litigant once it leaves the attorney’s office. A rule providing guidance on ghostwriting may also ease fears about other ethical issues.

    “We know ghostwriting is something that will continue to occur,” Judge Anderson said. “We should try and make it easier, and to a certain extent, less frightening for attorneys to do it.”

    Although ghostwriting and other forms of limited-scope representation are common among litigants, non-litigants also use limited-scope representation services.

    Wolverton says implementing the practice can create a “significant opportunity” for lawyers to provide services to clients who may not otherwise seek assistance. For example, Wolverton uses limited-scope representation to help clients review contracts.

    “I’m not involved in negotiations, but I explain to clients what the contract says, what the ramifications are, and how to proceed with negotiations on their own,” she said.

    Diane Diel, a Milwaukee-based family lawyer and former State Bar of Wisconsin president, often limits representation in helping divorcing couples reach collaborative divorce agreements.

    She said other family law practitioners provide limited-scope representation services extensively in other ways, too, like providing services on a child custody issues only.

    “Providing consultation or other discrete legal services certainly gives people more access to lawyers,” said Diel.

    A party may not have the means to pay a full retainer, but needs advice. “In that case, your legal service is limited to a prescription on how to proceed,” she said. Diel added that limited-scope representation “is not on the radar” for a lot of Wisconsin attorneys, but guidance on the issue could instill confidence to provide those limited scope services to clients.

    Straightening the road

    The PPAC subcommittee is in the process of drafting amendments to both ethics and procedural rules, and will continue collaborating with other justice system stakeholders to develop those changes as well as recommending educational programs and training materials for lawyers and the public.

    The goal is to encourage expansion of limited-scope representation services and balance this growth with the need to insure lawyers and clients understand how this arrangement should operate.

    The following are some of the subcommittee’s general recommendations, which will be used to implement a plan over the course of the next year:

    • Expand the scope of limited representation under Wisconsin Supreme Court Rule 20:1.2(c).
    • Draft rule amendments to require that a lawyer file a notice of limited appearance when providing limited assistance in court and a notice of withdrawal when the lawyer has completed the agreed upon representation.
    • Draft rule amendments to require notice to both the party and the lawyer during the period of limited scope representation.
    • Propose rules that provide guidance regarding whom the opposing lawyer may contact in a limited-scope representation situation.
    • Draft a ghostwriting rule that requires disclosure when a legal document is prepared with the assistance of a licensed lawyer but does not require identification of the lawyer who provided assistance.
    • Research training and educational programming that will best assist in the statewide expansion of limited-scope representation.
    • Develop forms including a notice of limited appearance, a notice of withdrawal of limited appearance, and an agreement of limited-scope representation.

    It is anticipated that recommendations for rule changes or amendments will be submitted to the Wisconsin Supreme Court in the fall of 2012.

    By Joe Forward, Legal Writer, State Bar of Wisconsin

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