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.