A More Humane Family Court
July 24, 2018 § 4 Comments
Sue Cochrane served for 18 years as a Family Court Judge in Minnesota, until she was diagnosed with terminal cancer. She left the bench to concentrate on her health, and she blogs at The Movement of Healing, the focus of which, she says, is “on positive, uplifting and inspiring people, ideas and stories.”
The Fetzer Institute Blog did a post on Judge Cochrane’s ideas about a more humane approach to family law:
Sue Cochrane, JD, served 18 years on the family court bench. Her goal as a judicial officer: to bring family law into closer alignment with its mission to serve the needs of the public … and to do it with kindness. Quickly she learned the power of working with families as equals, without judgment. Through the years she has worked to empower families to create their own solutions through collaboration and to find ways to bring a vibrant and beating heart to the body of family court. This reflection is excerpted from her article “Putting a Heart into the Body of Family Law,” which first appeared in The Collaborative Review, a publication of the International Academy of Collaborative Professionals. The image that accompanies this post was done in a true spirit of collaboration between mother (Sue Cochrane) and her son Tom Cochrane-Cole, who begins art school this fall.
Envisioning a Family Court of the Future
The law is well known for being logical and dispassionate—linear and analytic thinking prevail in our courts. But in the admirable pursuit of truth and justice, the court can inadvertently deny the humanity of the very people it exists to serve.
When families are in conflict or in crisis, logic is insufficient to heal their pain and trauma. Human beings are not abstract legal concepts, after all. In family court, it is as much a matter of the heart as the head, but our deepest values, like empathy, care, and compassion are often treated as irrelevant in such a system. This is why many people—judges and lawyers included—find the legal profession unsatisfying, ineffective, and potentially harmful, especially in the realm of family conflict.
We’ve made huge strides in criminal courts by focusing on issues and needs: DWI court, drug court, mental health court, veterans court, homeless court, juvenile court, and more. They acknowledge the limitations of the traditional courts and bring in a holistic collaboration of services that respond swiftly and effectively to complex needs. We have barely scratched the surface of what we can do in family courts if we open up to innovation and collaboration from many angles and disciplines.
We can put a “heart” into the “body” of law known as family court, with five basic changes:
1. Put People First
Families in crisis need a place that welcomes them, all aspects of them, including their emotions. They need and deserve to be respected, heard, and included. Creating a system committed to meeting their needs above all other agendas is first.
2. Listen, Be Kind and Compassionate
I learned most clearly during my time on the bench that ultimately it was my listening skills that were most needed. People need to have their story heard, all of it. To me, this is the essence of a “court hearing.”
I found that people need to be accepted, with dignity, with their mistakes, their anger, their stress, and their pain.
This opening allows people to choose a path congruent with their deepest values. Not once did they need to be judged.
3. Allow People a Voice
At the most basic level, access to justice means allowing people to have a voice. Family courts should not judge the families who come for help. Instead, courts should empower people to solve their own problems with respect and care. If people received this from the moment they walked in, judges would rarely be needed.
4. Create a Space for Healing
The physical space of family court should be redesigned to focus on the needs of those who use it. As an example, the cost of incorporating art and design that calms people and heals trauma will be more than offset by the benefits received by families in pain, not to mention those who work there every day.
5. Shift Resources
Less than 5% of all family court cases go to trial. So why do courts insist that everyone file papers, receive a case number, pay hundreds of dollars for a filing fee, get a court date to see a judge, and then wait? Why are the 95% of those who will settle without a trial penalized unnecessarily?
Courts no longer need a full complement of trial judges and staff “at the top” when only 5% of families go to trial. Significant resources should be shifted to the point of first contact for families who arrive there, with or without lawyers. Collaborations with professionals at the entry level could provide helpful and responsive service immediately, cutting through all those untimely and unnecessary bureaucratic steps to get right to the heart of their problem.
When trying to work with or change systems, I am inspired by the Dalai Lama’s invocation:
Be kind whenever possible.
It is always possible.
Setting Aside a Default Judgment
July 23, 2018 § 1 Comment
MRCP 55 governs defaults.
R55(a) states that “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
R55(b) provides: “In all cases the party entitled to a judgment by default shall apply to the court therefor. …”
R55(c) says that: “For good cause shown, the court may set aside a default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”
This is R60(b):
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.
Aside from the plain language of the rules, how have the courts addressed the setting aside default judgments?
The COA’s decision in Emery v. Greater Greenville Housing and Revitalization Association, handed down June 12, 2018, took on the appellant’s claim that the chancellor erred in refusing to set aside a default judgment entered against him. Judge Carlton wrote the opinion:
¶23. As the Mississippi Supreme Court has explained, “[a]ccording to Rule 55(c), a default judgment may be set aside ‘[f]or good cause shown’ and in accordance with Rule 60(b).” BB Buggies, Inc. [v. Leon], 150 So. 3d [90] at 101 (¶23) [(Miss. 2014)] (quoting M.R.C.P. 55(c)). The Court has articulated a three-pronged balancing test the trial court must apply in determining whether to set aside a judgment pursuant to Rule 60(b):
(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default,
(2) whether the defendant in fact has a colorable defense to the merits of the claim, and
(3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.
Id. As noted above, we apply an abuse of discretion standard in reviewing the chancery court’s denial of Emery’s motion to set aside the default judgment. If the chancery court’s decision is based upon an error of law, however, we will reverse. Tucker [v. Williams], 198 So. 3d 299, 309 (¶24) [(Miss. 2016)].
The decision goes on to analyze the facts of this particular case over the next dozen pages, reaching the conclusion that Emery failed to prove the necessary elements, and that the chancellor was not in error by refusing to set aside the default. You can read the opinion for yourself. It’s too lengthy and case-specific to be reproduced here.
Usually the lawyer is called upon to rescue the client from the client’s own failure and neglect to tend to his or her business that resulted in the default. That puts the lawyer in the unenviable digging-out-of-the-hole mode.
Sometimes it’s the lawyer’s oversight that put the client in the default hole. Don’t expect the chancellor to cut you any more slack than she would a lay person in the same situation. You still have to prove good cause, colorable defense, and nature of any resulting prejudice.
A Witness for Peace
July 20, 2018 § 4 Comments
Christianity does not have a monopoly on understanding the nature and operation of peace, love, and forgiveness. One of the most powerful exemplars of these treasured traits is Malala Yousafzai, a 15-year-old Pakistani Muslim girl whom the Taliban tried to kill because of her activism for the right of education, a pursuit forbidden to females by Muslim fundamentalism.
This is part of her testimony before the United Nations:
Dear friends, on 9 October 2012, the Taliban shot me on the left side of my forehead. They shot my friends, too. They thought that the bullets would silence us, but they failed. And out of that silence came thousands of voices. The terrorists thought they would change my aims and stop my ambitions. But nothing changed in my life except this: weakness, fear and hopelessness died. Strength, power and courage was born. I am the same Malala. My ambitions are the same. My hopes are the same. And my dreams are the same.
Dear sisters and brothers, I am not against anyone. Neither am I here to speak in terms of personal revenge against the Taliban or any other terrorist group. I am here to speak for the right of education for every child. I want education for the sons and daughters of the Taliban and all the terrorists and extremists.
I do not even hate the Talib who shot me. Even if there was a gun in my hand and he was standing in front of me, I would not shoot him. This is the compassion I have learned from Mohamed, the prophet of mercy, Jesus Christ and Lord Buddha. This the legacy of change I have inherited from Martin Luther King, Nelson Mandela and Mohammed Ali Jinnah. This is the philosophy of nonviolence that I have learned from Gandhi, Bacha Khan and Mother Teresa. And this is the forgiveness that I have learned from my father and from my mother. This is what my soul is telling me: be peaceful and love everyone.
Jesus said it this way: “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbor as thyself. On these two commandments hang all the law and the prophets.”
In 2014, Malala was awarded the Nobel Peace Prize.
On June 14, 2018, a US drone strike in Pakistan’s northeastern Kunar Province killed Taliban chief Mullah Fazlullah, the insurgent leader who ordered Malala’s assassination.
Accessing the Safe Deposit Box
July 18, 2018 § 2 Comments
Lawyers are often confronted with the problem how to access a decedent’s safe deposit box. Usually no one is certain that there is anything of value in it; they just want to make sure. So do we pay the costs to open an estate for temporary administration in the off-chance that there is something there? And then do we have to go forward with an estate that maybe no one really wants to pursue?
The legislature addressed the issue with SB 2668, which took effect July 1, 2018. Here is a summary of the new law by Senator Gray Tollison, who presented a program on 2018 legislation at Summer School for Lawyers:
SB 2668 provides the order of priority by which a financial institution must grant access to a safe-deposit box upon the death of the lessee. The bill also provides that a person seeking access to a safe-deposit box must provide to a financial institution certain documentation. Finally, the bill provides liability protections to financial institutions in certain instances.
Persons entitled to access in absence of probate or administration. At any time after 180 days from the death of a sole lessee or the last surviving co-lessee of a safe-deposit box, a financial institution must grant access in the following order of priority:
(a) The personal representative named in the lessee’s will if an estate has not been opened.
(b) A successor of the deceased safe-deposit box lessee, without necessity of administration, if an estate has not been opened.
Documentation required. A person seeking access to the safe-deposit box must provide the financial institution with the following:
(a) Reasonable proof of the lessee’s death;
(b) Reasonable proof of the identity of the person seeking access; and
(c) An affidavit containing the following information:
(i) The name of the person leasing the safe-deposit box and the date of the lessee’s death;
(ii) The county in which the lessee was domiciled at the time of the lessee’s death;
(iii) A statement that no application or petition for the appointment of a personal representative has been granted or is pending in any jurisdiction;
(iv) A statement that the value of the entire estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed $50,000.00; and
(v) A statement under penalty of perjury that the affiant is qualified under this bill to obtain access to the safe-deposit box leased by the individual and the facts establishing the qualification.
Interim access. A person shall be given access to a safe-deposit box before expiration of the required one-hundred-eighty-day period only to remove any will or burial instructions contained therein. The person must first meet all the requirements and conditions concerning the persons required to be present and a full inventory of the contents of the safe-deposit box; but no other contents of the safe-deposit box may be removed until the one-hundred-eighty-day requirement has been satisfied. The person given interim access to the safe-deposit box must immediately deliver all wills found and removed from the safe-deposit box to the clerk of the chancery court of the county in which
the decedent was domiciled at the time of the decedent’s death; failure to do so shall subject the person to criminal liability under Section 97-9-77.
The financial institution may make a complete copy of any document removed and delivered and place that copy, together with a copy of the inventory and supporting documentation noted with the date of delivery, in the safe-deposit box to remain there pending removal of the contents of the box as provided by this section or other law.
Reliance on affidavit. A financial institution that acts in reliance upon an affidavit without knowledge that the representations contained therein are incorrect is not liable to any person for so acting. A financial institution that does not have actual knowledge that the facts contained in the affidavit are incorrect may assume without inquiry the existence of the facts contained in the affidavit.
A financial institution shall not be held liable for any costs, expenses, damages or attorney’s fees arising from a grant of access to, or delivery of, the contents held in a safe-deposit box when the access or delivery is under the provisions of this section.
Self-Appendectomy
July 17, 2018 § 1 Comment
Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.
A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:
I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.
Some thoughts:
- In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
- I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
- ” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
- The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
- No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.
Proof of Attorney’s Fees in a Mixed Action
July 16, 2018 § Leave a comment
Mark Campbell filed a combined contempt and modification action against his ex-wife, Misty. She counterclaimed. Following a hearing the chancellor granted relief and awarded Misty $4,141.97 in attorney’s fees. Mark appealed several issues, the attorney’s fee award among them.
In Campbell v. Campbell, decided June 19, 2018, the COA reversed and remanded the attorney’s fee award because there was insubstantial proof of what portion of the fees was attributable to defending the modification, and what was incurred in pursuing the contempt. Judge Tindell wrote the opinion:
¶17. Mark next challenges the chancellor’s award of $4,141.97 in attorney’s fees to Misty. After finding Mark’s allegations of abuse and neglect against Misty lacked evidentiary support, the chancellor ordered Mark to pay the fees Misty incurred defending against the unsubstantiated claims. See Miss. Code Ann. § 93-5-23 (Rev. 2013). Mark asserts on appeal, however, that Misty’s attorney never separated the fees incurred defending against the abuse and neglect allegations from the fees incurred litigating other matters. Since the chancellor only ordered Mark to pay the attorney’s fees related to the litigation of the abuse and neglect allegations, Mark argues the chancellor abused his discretion by failing to
separate those fees from the “fees otherwise incurred in Misty’s defense of Mark’s request for decreased child support and pursuit of her own request for increased child support.”
¶18. The decision to award attorney’s fees is largely entrusted to a chancellor’s sound discretion. Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). After finding Mark’s claims of abuse and neglect to be unsubstantiated, the chancellor was well within his authority to award Misty the attorney’s fees she incurred defending against the allegations. See Miss. Code Ann. § 93-5-23. However, the chancellor never made a finding that Misty lacked the ability to pay her attorney’s fees incurred litigating other matters. See Ewing v. Ewing, 203 So. 3d 707, 716 (¶33) (Miss. Ct. App. 2016) (“Generally, unless the party requesting attorney’s fees can establish [an] inability to pay, such fees should not be awarded.” (quoting Bredemeier v. Jackson, 689 So. 2d 770, 778 (Miss. 1997))). As a result, we find the chancellor abused his discretion by failing to separate the attorney’s fees Misty incurred defending against Mark’s allegations of abuse and neglect from those fees incurred litigating other matters. We therefore reverse this portion of the chancellor’s judgment and remand the issue so the chancellor may determine which attorney’s fees Misty incurred defending against Mark’s unsubstantiated allegations.
Here’s the deal: the standard that the judge is to apply in awarding attorney’s fees for a modification, or for a divorce for that matter, is different than the standard for an award of attorney’s fees for contempt. That is why you must put on proof of the amount of time devoted on the one hand to the modification issues, and on the other to the contempt issues. For modification, you will have to show your client’s inability to pay. For contempt, you merely have to make your prima facie case that the other party was not in compliance with the court order when the suit to enforce was filed.
Caveat: The reasonableness of the attorney’s fee award is reviewed in relationship to the McKee factors. A post dealing with this is at this link. You should always include proof of the McKee factors, even in contempt cases, because you want to make your attorney’s fee awards as bullets-proof as possible.
“Quote Unquote”
July 6, 2018 § 5 Comments
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” — Justice Anthony Scalia, majority opinion in District of Columbia v. Heller.
“No freedman, Negro, or Mulatto shall carry or keep firearms or ammunition.” — Mississippi Black Code (1865)
“There’s no reason why on the street today a citizen should be carrying loaded weapons.” — Ronald Reagan, commenting on armed Black Panthers demonstrating in California
Limited Scope Representation and Disclosure of Services
July 3, 2018 § Leave a comment
Before limited-scope representation, I think it was pretty clear that a lawyer who prepared papers for a person to use in court had to show on the paperwork that he had prepared it.
Since limited-scope representation, the answer has been unclear. Until now.
The Mississippi Board of Bar Commissioners has addressed the question with an Ethics Opinion. The text of it is here:
ETHICS OPINION NO. 261
OF THE MISSISSIPPI BAR
RENDERED JUNE 21, 2018
The Ethics Committee has asked to respond to two questions:
Is it ethical for a lawyer to prepare documents for pro se litigants?
If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
APPLICABLE RULES
Rules 1.2 and 8.4(c) of Professional Conduct are applicable to this opinion. The relevant portion of these Rules provide:
Rule 1.2 Scope of Representation
(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Comment
Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.
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 limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.
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. 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
And,
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
ANALYSIS
(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?
Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services. It is important for lawyers to remember two important aspects of this type of limited scope representation. First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation. Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.
(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer. Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).[1] The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unware of the limited representation provided.
While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement. If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.
There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.
The Better Chancery Practice Blog 