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.
APPEARANCES CAN BE DECEIVING
April 7, 2011 § 5 Comments
When do your actions constitute an appearance in court on behalf of your client? It’s an important question, because your actions or non-actions can result in professional liability for you.
Take for example this scenario:
Joey, an old client, and his daughter meet with you one morning. Joey is upset because his wife, Betty, has filed a divorce complaint against him. He wants you to represent him, but he can’t afford your retainer, and you know from past experience that he probably won’t pay your bill. In an effort to mollify Joey, you call the lawyer on the other side and tell him that Joey is willing to agree to a divorce, and if Betty will provide a list of property she wants, the case can be settled. You hang up the phone, Joey and daughter leave thinking all is taken care of, and you promptly put it out of your mind, turning your attention to paying clients.
Fast forward a few months. Joey returns to your office quite upset. He hands you a judgment granting Betty a divorce and giving her most of the marital assets. Oops.
What happens next? In the case of Simmons v. Simmons, with facts almost identical to those above, Joey’s lawyer filed a motion to set aside the divorce on the basis that the phone call constituted an appearance. The opposing attorney took the position that he had a vague recollection of a phone call from someone, but could not even remember who called him, and he went forward with the divorce when his client insisted he finalize the case. The chancellor overruled Joey’s motion, and Joey appealed. The COA held that the chancellor’s finding that the phone call did not amount to an appearance was one of fact, and would not be disturbed on appeal.
So how do you protect yourself in these situations? A few suggestions:
-
Don’t do it. Don’t make that call. Explain to Joey that you can not just call the other lawyer without being retained. If you call, Joey will likely believe that you now represent him, retainer or none, and you may well have a professional responsibility to him.
-
Okay, if you simply can not resist, then don’t make the phone call without a representation agreement. If the client can’t pay the full freight tab, consider a limited scope representation agreement at a lesser rate, and reduce your services accordingly.
-
Document, document, document. Write a letter and follow up. Fax the letter; that fax transmission notation and receipt may be just the proof you need if the lawyer on the other side claims he never received the letter.
You’ve probably thought of a few other measures you could take. Good. Protect yourself.
Just last week I continued a divorce trial (for two weeks) because a lawyer had gotten into a similar swivet. To make matters worse, the lawyer has a letter from the defendant, who is in Rankin County Correctional Facility, thanking him for his efforts in representing her, although all he did was make a couple of phone calls to counsel opposite. He has two weeks to get straight with his client/non-client.
Another post on this subject is here.
LIMITED SCOPE REPRESENTATION NOW A FACT IN MISSISSIPPI
February 2, 2011 § 1 Comment
I’ve talked here before about “unbundling” of legal services, also called “limited scope representation,” as a way of opening legal services to people who otherwise can not afford a lawyer for matters that they consider routine or uncomplicated.
On January 27, 2011, the Mississippi Supreme Court adopted amendments to the professional rules that allow limited scope representation. You can read the press release, which includes a link to the amended rules, here.
On the whole, I think this is a positive development in that it will help open up access to lawyers and courts. I do have a couple of practical concerns:
- What does the lawyer do when the client insists that you limit the scope of your representation, but you know it is definitely not in the client’s best interest, and may even be to the client’s detriment, not to address other matters?
- How do you draft a limited scope representation agreement that protects the lawyer from action by the client claiming inadequate representation?
Other states have trod this path before us, so there are possibly bar opinions and case law that can provide some guidance to practitioners.
From the court’s perspective, I can tell you that there is a serious need for low-level involvement of attorneys in those so-called simple and uncomplicated matters. I could go on and on about experiences with pro se litigants going forth boldly where no lawyer has set foot before, using pleadings and guidance material from the internet or from so-called legal software, or from kits purchased at office supply stores. These cases are a judge’s nightmare because the judge should never be put in the position of assisting any party with correcting and putting pleadings and other papers right, and the judge certainly can not do so when there is an opposing party. It can be painful and demoralizing to watch a pro se party inflict serious legal damage on herself, usually without a clue as to the extent of the injury. Even minimal involvement of an attorney in those cases would be a major benefit.
Another aspect of pro se proceedings often overlooked is that the pro se litigant has no professional or ethical duty to the court or to the opposing party. The possibility for fraud and misrepresentation is significant. There is no attorney, with his or her license and professional responsibility on the line to reassure the court. Likewise, these companies that sell the kits, software and advice owe their customers no duty at all. The insurance that a client obtains by hiring a lawyer is non-existent.
Finally, lawyers need to be aware that the DIY legal industry stands to keep chipping away at the edges of the practice of law until there will be real competition for clients. Your license and substantial investment in legal education, as well as your dedication to legal ethics and duty to the courts are all going to be in competition with nameless and faceless paper mills and internet sites that have no professional standing, no investment in education, and no ethical responsibilities.
I hope limited scope representation helps reduce the trend toward more DIY litigation. I encourage lawyers to look into limited scope representation and discover how it can enhance their practice as well as aid laypersons who feel that they can not afford legal services.
IS THIS THE SOLUTION TO PRO SE LITIGATION?
August 25, 2010 § 7 Comments
A post about proposed changes to the pro bono rules for lawyers is here. There is a thoughtful comment to that post that highlights some dimensions of the situation.
It’s no secret that pro se litigants are appearing more and more frequently in Chancery Court. Whenever I ask a self-represented litigant why he or she did not hire an attorney, cost is always the response.
In our district, it’s not uncommon for a simple, irreconcilable differences (ID) divorce to cost upward of $1,500 to $2,500, plus court costs, although I have heard of some lawyers charging as little as $250 plus costs for an ID divorce with no children.
Self-representation, however, is not limited to routine, uncomplicated matters like ID divorces involving no children, no property, no joint debts and no other problems. I see pro se litigants in all kinds of matters. I presided over a termination of parental rights case not too long ago where the father represented himself and lost. I have seen pro se litigants in an adverse possession case, contempts, paternity, and even in a partition suit where, believe it or not, both sides were pro se. I can say unequivocally that I have never seen a party who proceeded pro se in a contested case leave the courtroom in better shape legally or equitably than he or she was when they walked in.
Although most all say that they choose to proceed pro se due to the rising cost of legal fees, I find in the course of things that others simply underestimate the complexity of the issues involved and think that legal matters are little more than filling out a few sheets of paper and filing with the court. Still others are lured by the siren-song of the internet sites that push cheap fill-in-the-blank do-it-yourself legal proceedings. The common denominator among all of these is that they are looking for a cheap, one-size-fits-all, easy solution to what may be a complicated situation.
These are the people who wind up in court pro se. In many cases, those pro se parties are getting simple ID divorces using kits they purchased on-line. Some are getting pleadings prepared by “secretarial services,” in violation of state law prohibiting practice of law without a license. The simple cases with no children do not usually give rise to later litigation. Pro se litigants with children, however, are a recurring problem.
Problems with child support provisions, joint and sole custody provisions, division of property, and allocation of debts are all common problems in these do-it-yourself cases. I have one pair of parties in Clarke County that I have sent back to the drawing board four times, and, although they are my most extreme case, they are by no means the only case that I have had to treat that way. I have just about decided that, if there are children, I will require the parties either to have an attorney or I will appoint a guardian ad litem at their expense.
The self-represented parties seldom understand why they can’t simply have their papers signed, and they are invariably frustrated when I tell them that I can not advise them how to draft an acceptable child support provision, or why that waiver filed a week before the complaint won’t cut it, or why they need a property settlement agreement when they don’t have any property.
How do we make legal services more affordable, thus reducing the pool of pro se litigants? Some claim that “limited scope representation,” also known as “unbundling” is the answer to lower legal fees. In essence, it is a representation arrangement in which the respnsibility of the lawyer is limited and the fee is resultingly lower. The attorney may, for instance, agree only to advise one of the parties about the language of the property settlement and child support agreement, or simply to prepare pleadings. The clients buy only as much legal service as they feel they need.
The Supreme Court’s Commission on Access to Justice proposed an amendment to Rule 1.2 of the Rules of Professional Conduct to allow for limited-scope representation. They met on Monday, August 23, and since the comment period has expired, I assume they will pass the rule on to the Supreme Court for adoption. I am all for it.
Although the proposed rule approves and encourages the practice, it does not address how a representation agreement would read so as to cover all of the ethical concerns that might arise. There is information available online, however, that may provide a starting point for lawyers. The LAWYERS USA website offers some information. The ABA has some info. The Civil Justice Network also has some info. A paper presenting the pros and cons of the practice is here.
Whether limited scope representation is the answer to the growing numbers of pro se litigants, I have no way of knowing. I do believe that it has the potential to help dramatically because it will decrease the amount of time judges will need to devote to scrutinizing pro se litigants’ pleadings and paperwork.
One caveat: I will not approve a limited-scope representation arrangement in any probate matter. Rule 6.1 of the Uniform Chancery Court Rules requires that every fiduciary retain an attorney, and you will be expected to continue in your role as counsel once you are in until you find substitute counsel. I will not allow the operation of the new rule (if it is enacted) to create an end-run around Rule 6.1.
An approach to the pro se phenomenon that I can not endorse is continued encouragement of laypeople to tackle more of their own legal matters. I saw a bar-produced video of smiling legal professionals encouraging people to handle their own “routine” legal matters, and making it sound as easy as folding a paper airplane. I don’t understand this approach. The American Medical Association does not promote do-it-yourself tonsillectomies, but then medical ethics includes the fundamental proscription, “Do no harm.” To me, the solution is not to encourage people to do their own legal surgery. The answer is to make it more likely that they will have a competent surgeon.
I am not a fan of pro se litigation. Even seemingly simple, routine matters may have serious implications for the parties, and I assure you that they have absolutely no clue about those ramifications. Self-represented litigants seldom have a grasp of the ramifications and complexities of equitable distribution, the various forms of child custody, or joint debt, to name but a few of the many legal snares that await the unwary. Also, the parties are under no duty to be honest and forthright with the court, leaving open the very real possibility of fraud or worse. Without legal advice and the check that an ethical attorney provides, the parties’ paperwork can create more problems than it solves, and even in the absence of lawyers it is clearly not the duty of the judge to advise them about the possible mess they may be creating. Yet, every day, inexorably, we see more and more self-represented litigants.
I am a firm believer in access to justice, but in our commendable haste to discover a way to do that, let us not lose sight of what it is we are trying to achieve: access to justice. Not access to disaster. Limited scope representation may be a good first step toward alleviating this problem.
The Better Chancery Practice Blog 