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.

MUCH ADO ABOUT SOMETHING

March 18, 2013 § 2 Comments

Forbes v. St. Martin, et al., decided March 5, 2013, by the COA, is a tour de force on contingent fee contracts and their enforceability. If you do any contingent-fee work, this is a must-read for you. Actually, it’s a good opinion to read and examine as a case study in ethics. 

The 41-page majority opinion was penned by Judge Griffis. The rest of the court went this way: “ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND THE IN RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY ROBERTS, J. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. JAMES, J., NOT PARTICIPATING.”

James Forbes had suffered catastrophic injuries in a gas-station explosion in Biloxi. Through a series of events he came to be represented in his personal injury claim by St. Martin, a Louisiana lawyer. Rather than qualifying to proceed pro hac vice, St. Martin instead associated a Mississippi lawyer and kept a rather low profile in the case, advising Forbes and his wife in the background and letting Mississippi counsel, with whom he corresponded regularly, take the lead in the record of the litigation.

The PI case was settled eventually for $13.6 million, and St. Martin’s fees, which were to be divided with Mississippi counsel, were $4.6 million.

Forbes filed suit against St. Martin and the Mississippi lawyer, and their respective firms, seeking to void the contingent-fee contract. The complaint asserted claims for breach of fiduciary duty, professional negligence, fraud and misrepresentation, conversion, rescission, imposition of a constructive trust, quantum merit, attorney’s fees, and actual and punitive damages. The Mississippi lawyer and his firm were dismissed, and St. Martin’s malpractice carrier was added as a defendant.

Both Forbes and St. Martin filed motions for summary judgment, and the chancellor ruled in favor of St. Martin.

The COA reversed and remanded. The ruling is too involved to go into detail here, but the court ruled that Forbes had presented enough evidence that there did exist a genuine issue of material fact so that summary judgment should not have been granted. Some of the findings of the COA:

  1. St. Martin made over $100,000 in “cash advances” to the Forbes, which they spent on a Bahamian vacation, a Caribbean cruise, a car, a cell phone, and “other personal expenses,” in violation of Rule 1.8(e) of the Rules of Professional Coduct;
  2. Unauthorized practice of law by St. Martin in Mississippi;
  3. The first contingent-fee contract was made while Forbes was under influence of narcotics;
  4. The second contract may have been the product of misleading or even fraudulent advice;
  5. Portions of the contract pertaining to ability to settle without counsel and ability to terminate counsel were in violation of Mississippi’s professional conduct rules.

So St. Martin returns to trial in chancery unless he can convince the MSSC to take the case on cert. That could happen if the MSSC wants to clarify the law in this area. Or, the high court could let the case finish its run through the trial court and then entertain it later. With millions at stake, it’s inconceivable that a later appeal would not result no matter what the ultimate trial outcome.

An interesting aspect of this case is that it is in essence a malpractice claim based on breach of fiduciary duties, which is not the usual and customary avenue that plaintiffs pursue in these cases.

The question at the heart of this appeal is whether an out-of-state lawyer may enter into an agreement with a Mississippi lawyer for joint representation of Mississippi litigants in a way that the out-of-state lawyer may avoid coming within the restrictions of the Mississippi rules of professional conduct and the scrutiny of our courts. The answer of the COA is “no.”

A subsidiary question is raised in Judge Maxwell’s partially concurring opinion, which challenges the majority’s definition of the practice of law. Judge Maxwell would not define it as expansively as did the majority. In my opinion, if the supreme court decides this phase of the case merits a look, this will be the battleground issue.

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