Question
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
I am a transactional attorney. My client is a sophisticated businessperson who plans to negotiate the terms of a merger agreement himself. The merger transaction is a complex one, and the financial issues are significant. He has asked me to limit the scope of my representation to that of “a scrivener” – to ensure that the written agreement reflects the terms negotiated by him. May I do so consistent with my ethical obligations?
Answer
SCR 20:1.2(c) permits a lawyer to limit the scope of representation if the limitation is reasonable under the circumstances and if the client gives informed consent.1
“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 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.”2
Moreover, a limited-scope representation does not exempt a lawyer from the duty to provide competent representation. The limitation, however, is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.3
While the client here is a sophisticated businessperson, it may not be reasonable in a complex transaction involving significant financial issues to limit the representation to that of a scrivener. Without ascertaining the client’s objectives, discussing various legal and strategic issues, and determining whether the client understood all the terms of the agreement, the lawyer may be unable to assess whether the writing reflects and effectuates the terms negotiated by the client. Moreover, in such circumstances, the lawyer may also violate his duty of competency under SCR 20:1.1.
In a recent New Jersey malpractice case, the appellate court reversed summary judgment in favor of the lawyer, concluding that a transactional lawyer may have violated his duty of competency by failing to explain unambiguous business terms in a written agreement, even though the client was a sophisticated businessperson who negotiated the terms of the agreement himself and even though the lawyer asserted that he was “primarily a scrivener” for the transaction.4
1 SCR 20:1.2(c) was amended in June 2014, and the amendment will become effective on January 1, 2015.
(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 client's informed consent must be in writing except as set forth in sub. (1).
(1) The client's informed consent need not be given in writing if: a. the representation of the client consists solely of telephone consultation;
b. the representation is provided by a lawyer employed by or participating in a program sponsored by a nonprofit organization, a bar association, an accredited law school, or a court and the lawyer's representation consists solely of providing information and advice or the preparation of court-approved legal forms;
c. the court appoints the lawyer for a limited purpose that is set forth in the appointment order;
d. the representation is provided by the state public defender pursuant to Ch. 977, stats., including representation provided by a private attorney pursuant to an appointment by the state public defender; or
e. the representation is provided to an existing client pursuant to an existing lawyer-client relationship.
(2) If the client gives informed consent in writing signed by the client, there shall be a presumption that: a. the representation is limited to the lawyer and the services described in the writing, and
b. the lawyer does not represent the client generally or in matters other than those identified in the writing.
(cm) A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that "This document was prepared with the assistance of a lawyer." A lawyer shall advise the client to whom the lawyer provides assistance in preparing pleadings, briefs, or other documents for filing with the court that the pleading, brief, or other document must contain a statement that it was prepared with the assistance of a lawyer
2 ABA Comment [7] to SCR 20:1.12.
3 Id.
4 Cottone v. Fox Rothschild, LLP, 2014 BL 240874 (N.J. Super. Ct. App. Div., Sept. 2, 2014).
