The Limits of Limited Scope Representation
March 26, 2014 § Leave a comment
The traditional default setting for representation of a client in a legal proceeding is that, once you enter an appearance, you are in the case until the judge lets you out.
There was a change in the Mississippi Rules of Profesional Conduct (MRPC) 1.2(c), which now provides that: “A lawyer may limit the objectives or scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The comment to the rule provides some helpful insight [Note that the comment in the West version of the rules is more detailed and to the point than the one posted online at the MSSC web site. I don’t know what causes the discrepancy].
With MRPC 1.2 in mind, then, how do you go about accomplishing limited scope representation in chancery court? There are no guidelines that I know of, and there is no Mississippi case law on point to my knowldge, so I am offering my opinion as to how you should handle limited-scope representation so that your obligation to the court and the client is, indeed limited:
- First, and most importantly, have your client sign a contract or representation agreement that specifically spells out exactly what you are agreeing to do, where your representation begins and ends, and includes the acknowledgment by the client that he or she had been fully informed about it and agrees that it is reasonable under the circumstances. The written agreement is critical, because you don’t want it to have to come down to a credibility contest between you and your client; you might just get caught in that default setting mentioned above.
- If the scope of representation involves filing pleadings, include in your filing some language informing the court of the limited scope, and include in the request for relief a prayer to be released from further representation after an order or judgment is entered. And, just to be certain, have your client sign off on the pleading. Then make sure your order or judgment specifies that you are released, and a better practice is to have your client sign off on it.
- If the scope of representation involves personally appearing before the court for a limited purpose (e.g., solely to obtain a continuance for the client), before you appear in court file an entry of appearance with the clerk spelling out your limited representation. Then make sure the resulting order lets you out. Just because you have an agreement with your client that does not mean you do no have continuing responsibility to the court.
- Remember, if the court does not let you out of the case by a specific order doing so, you are in it until the court does let you out.
- Limited scope representation does not work in probate matters. Once you enter an appearance in most districts you are in it until the judge approves a replacement.
Unless and until you inject into the record that your scope of representation is limited, the court should assume that it is not.
The enforceability of a limited scope representation agreement is contingent upon the resonableness in the circumstances of limiting representation and the client’s informed consent. I think this means that a chancellor may, at any time that you try to invoke such an agreement, inquire into both prongs. My intuition is that most chancellors will enforce the limitation of representation where the client does not object. But where the client objects, and where there is no written agreement, you are in a case-by-case situation.
I have said before that I wish the bar would give lawyers more guidance about the practicalities and the ethics of limited scope representation. Even sample agreements that have worked in other jurisdictions would be helpful. Those kinds of things would be a benefit not only to lawyers, but also to clients with limited funds who could pay a lawyer to do some work in the case without shouldering the full burden of attorney’s fees, rather than going pro se all the way. Win-win.