Nov. 5, 2014 – Wisconsin lawyers will have more guidance when providing limited-scope or “unbundled” legal services starting Jan. 1, 2015, when rule amendments adopted by the Wisconsin Supreme Court take effect.
Limited-scope representation (LSR) allows lawyers to represent clients on specific, limited aspects of a case. Wisconsin has expressly allowed it by rule since 2007, and lawyers have long engaged in different forms of limited-scope representation.
But the current rule, which simply allows attorneys to enter LSR agreements with clients if reasonable under the circumstances, left gray areas under the Rules of Professional Conduct for Attorneys. Those gray areas created some consternation among lawyers.
According to State Bar of Wisconsin Ethics Counsel Tim Pierce, the 2007 rule allowed limited-scope agreements but did not provide guidance on the lawyer’s duties and obligations, causing lawyers to be somewhat hesitant to enter such agreements.
“I frequently get questions about limited-scope representation,” Pierce told the court in March at a public hearing. “I believe the petition accomplishes the important goal of providing a safe harbor and guidance to a few key areas that recur constantly.”
John Voelker, former director of state courts, submitted the petition in July 2013 on behalf of the Wisconsin Supreme Court’s Planning and Policy Advisory Committee.
Limited-scope Appearances, Ghostwriting, and Communications
Pierce said the rules necessarily address situations in which a lawyer agrees to appear in court on a limited basis for a specific hearing, but not all hearings related to the case.
The current rule is not enough, Pierce said, because it does not tell lawyers how or when to notify the court of the limited appearance and how and when the limited appearance is terminated. “That has been a constant expression of concern,” he said.
The new rules address limited appearances specifically, governing when the notice of limited appearance and notice of termination of limited appearance should be filed and what the notices must contain. The rule also requires the Director of State Courts to create and draft notice forms for distribution to county court clerks for attorney use.
Pierce said the limited appearance termination rule is particularly important because existing rules allow judges to prohibit attorneys from withdrawing from the representation of a client.1 “The intent of the provision is to relieve lawyers from the need to file a withdrawal motion and have a hearing on withdrawal,” Pierce said.
Additionally, Pierce said he frequently gets questions about ghostwriting, where a lawyer provides drafting services in connection with pleadings and other court documents but does not agree to appear in court. Nothing in the current Wisconsin rules prohibit attorneys from ghostwriting, and nothing explicitly allows it. It’s an ethical gray area, Pierce said.
The new rules expressly allow ghostwriting. Attorneys are not required to disclose their identities, but the document must contain a statement that it was prepared with the assistance of a lawyer. The rule also includes a provision regarding fact statements.
“The attorney providing such drafting assistance may rely on the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe that such representations are false, or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts,” the rule states.
Pierce said clarifying Wisconsin’s position on ghostwriting eases attorneys’ fears about the practice, especially given case law in federal jurisdictions holding that a lawyer can be reprimanded for providing ghostwriting services without disclosing their identity. “The fact that those cases exist can make lawyers nervous,” said Pierce.
Pierce clarified that the ghostwriting rule only applies to pleadings, briefs, motions, and other court documents that are filed in litigation or other court matters.
In addition, the rule only addresses situations involving pro se parties who obtain ghostwriting services; it does not govern situations in which a brief or other court filing is prepared by an associate or contract lawyer and signed by the attorney-of-record.
“In those cases, the lawyer who signs the pleading assumes responsibility for the document,” Pierce said. “That isn’t the situation contemplated by this provision.”
Finally, what happens if an opposing attorney speaks with the self-represented litigant who is receiving limited-scope services from a lawyer? Has the opposing attorney violated the rule that says lawyers cannot communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer?
Under the new rules, there’s a safe harbor for that situation. Parties who receive limited-scope services from a lawyer “are considered unrepresented.” Thus, the lawyer can speak with the unrepresented person although he or she is represented on a limited basis, unless the lawyer providing limited services notifies the lawyer otherwise.
More Access to Lawyers
Currently, 42 states allow attorneys to offer unbundled services in appropriate matters. But recently, the American Bar Association (ABA) and many states, including Wisconsin, recognized the need to actively encourage the unbundling of legal services.
In February 2013, the ABA adopted a resolution to encourage limited-scope services through rules and opinions that provide guidance to lawyers. The ABA also encouraged efforts to increase awareness about LSR options to help improve access to justice.
According to the ABA, the purpose of LSR is two-fold. First, more modest means and lower income individuals will have access to lawyers if services can be “unbundled.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The resolution noted national data indicating that between 60 and 90 percent of family law cases involve self-represented litigants. Wisconsin estimates are on par.
In 2007, the State Bar reported that more than 500,000 indigent Wisconsin citizens faced at least one significant legal problem per year without legal assistance. Many involved family law cases. One judge said the numbers are probably much higher now.
Second, lawyers can tap new legal markets by offering limited-scope services that are affordable for lower income and modest means individuals. In the absence of affordable legal services or legal aid qualification, many of these consumers simply litigate pro se.
“Unbundling provides an affordable alternative to self-help,” said Stephanie Kimbro, who wrote a book on limited-scope representation and is on the standing committee that drafted the ABA resolution to encourage unbundling nationwide. “It gives the public an opportunity to get affordable and personalized service through a licensed lawyer.”
For legal matters such as estate planning, real estate, or business incorporation, consumers are turning to legal document preparation service providers like LegalZoom.
Other innovators are launching new platforms to tap the self-help client. Recently, Avvo Inc. announced an on-demand service called Avvo Advisor. Customers pay $39 for a 15-minute conversation with licensed attorneys who must respond within 15 minutes.
Avvo Advisor is available in 15 states, including Wisconsin. In a press release from Avvo, one vice president says consumers now have “easy access to legal help on-demand at a cost of up to 71 percent less than that average hourly fee of a lawyer.”
Lawyers can sign up to work as an Avvo Advisor. This company recognizes that people want more access to lawyers at affordable prices, and LSR offers that opportunity.
“What we have right now is people going on Google, typing in their legal need, and then using free or do-it-yourself websites for help rather than a lawyer,” said Kimbro, a co-director of Stanford Law School’s Center for Law Practice Technology.
New rule changes and ethics opinions provide more certainty for lawyers who offer LSR, says Kimbro, a member of the ABA Standing Committee on the Delivery of Legal Services. Kimbro offered unbundled services through a virtual law office for a decade.
Unbundled legal services are more affordable because clients can pick and choose what services they need. For instance, clients may want the lawyer to simply advise them on legal strategy before a pro se appearance, or write a pleading or brief.
Alternatively, lawyers can tap the untapped market of do-it-yourselfers by offering LSR and showing clients the value of the lawyer’s services. They might come back.
“I know a lawyer in Raleigh,” Kimbro said. “He offers a menu of unbundled family law services. Many of the clients end up converting to full-service clients. They go through an initial step, whether a divorce or custody, and realize they need additional help.”
Kimbro said that, in the past, legal aid groups have resisted unbundled services because of their stance that everyone is entitled to full representation. “I think that mindset has shifted somewhat. They are recognizing that a little help is better than no help at all.”
Legal Action of Wisconsin, a strong supporter of what’s known as civil Gideon – the constitutional right to representation in certain civil cases affecting basic human needs – supported the new limited-scope representation rules.
In a letter to the court, former Legal Action of Wisconsin Executive Director John Ebbott said the courts have authority to appoint counsel in civil cases, but noted that full representations may not be possible from a funding standpoint. This rule allows courts to appoint lawyers for limited-scope representations for crucial aspects of a case.
Kimbro said more attorneys will offer LSR, so long as the market demands it. Even larger corporations are asking for LSR options from outside counsel, she says.
1 The new rule says: “At the conclusion of the representation for which a limited appearance has been filed, the attorney’s role terminates without further order of the court upon the attorney filing with the court, and serving upon the parties, a notice of the termination of limited appearance. A notice of termination of limited appearance shall contain all of the following information: (a) A statement that the attorney has completed all services within the scope of the notice of limited appearance. (b) A statement that the attorney has completed all acts ordered by the court. (c) A statement that the attorney has served the notice of termination of limited appearance on all parties, including the client. (d) Contact information for the client including current address and phone number.