Limited scope or discrete task legal representation - aka "unbundling" -is a client- and lawyer-friendly idea whose time has come, proponents say.
Walk into any high volume court call, whether it's family, small claims, traffic, or housing court, and you'll probably notice that a majority of parties are proceeding without lawyers.
Some will present their cases effectively, even though unrepresented. Others will need some help and coaxing from the judge, but will ultimately make themselves and their positions understood.
Still others will clearly have no idea what to do or how to present what they want in court. Their matters will be time-consuming and painful for all in the courtroom to watch, and extraordinarily difficult for even the most patient of judges to handle.
In these challenging economic times, lawyers are hurting for business, and all of these unrepresented parties would probably benefit from a lawyer's involvement. But, though their matters are extremely important to them, full representation from a lawyer at a fair price would be either beyond the means of many of these litigants or so costly that they forgo any legal consultation. And even if litigants can afford to pay for representation in the near term, lawyers are often reluctant to enter their appearances without substantial, long-term retainers, lest the judges presiding refuse to give them leave to withdraw in the event that their clients stop paying.
Is there a means to connect these un-represented litigants and the lawyers who want business and would be able to provide them with valuable services? Yes, say the Lawyers Trust Fund of Illinois and a cross-section of lawyers and judges who are concerned with meaningful access to justice for all. One answer, they believe, is limited scope representation.
A hot topic
Limited scope legal representation, also known as discrete task representation or "unbundled" legal services, isn't new, particularly in transactional fields, as ISBA General Counsel Charles J. Northrup explains. "Limited scope legal representation is nothing more than lawyers being retained on very discrete portions of a representation."
Says Chicago lawyer J. Timothy Eaton, immediate past president of the board of directors of Lawyers Trust Fund of Illinois (and past ISBA president), "We've all drafted or reviewed parts of a contract for a specific purpose, or maybe been hired just to draft a settlement agreement."
In fact, Eaton continues, "Free or low-cost, flat-fee legal consultations," such as those widely advertised by many lawyers and bar association referral services, "are the epitome of limited scope representation." But, Northrup adds, "The application of limited scope representation in the litigation arena is a newer phenomenon and has been subject to considerable publicity and debate both within, and outside, the legal profession."
The balance of opinion among lawyers is that the Illinois Rules of Professional Conduct have long allowed limited scope legal representation. The version of RPC 1.2 that was in effect before January 1, 2010, provided, at paragraph (c), "A lawyer may limit the objectives of the representation if the client consents after disclosure."
New RPC 1.2(c) is unambiguous: "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent."
Over the last decade or so, several factors have converged to make limited scope legal representation a hot topic among those concerned with access to justice. First, courts are seeing more self-represented litigants, requiring them to expend additional resources in assisting those individuals. Second, lawyers are seeing their business diminish as fewer people are able to afford full representation.
Third, legal services organizations are finding themselves overwhelmed by demand while, at the same time, their funding is being cut. Finally, many consumers of legal services are resorting to the Internet for legal education and advice, where they are finding information that may not be accurate and/or may not be suitable for their needs. Without consulting a lawyer, those consumers may not be able to recognize the unsuitability of the information they obtain and may not realize what alternatives exist for their unique matters.
Building on the new rules: the LTF proposal
With miserably low interest rates as well as fewer fees on deposit in lawyer trust accounts, the Lawyers Trust Fund (LTF), which has historically provided substantial funding for Illinois's legal services organizations, has had to cut back its assistance. With the input of an advisory committee composed of judges, legal aid lawyers, and private practitioners, the organization drafted a proposal that builds on RPC 1.2(c) to make it even easier for a lawyer to provide limited legal services in the litigation, not just the transactional, context.
As LTF counsel David Holtermann explains, "Absent the ability to increase funding, LTF sees limited scope representation as a way for its legal aid grantees to provide assistance more efficiently, and for pro bono lawyers and private practitioners to help low and moderate-income people."
In January of this year, LTF sent its proposal to ISBA, the Chicago Bar Association, and the Illinois Judges Association. Those organizations, in turn, formed a Joint Task Force to review the proposal and make recommendations to their membership. The task force first met on April 23, 2010, cochaired by ISBA Second Vice-President John Thies, Diane Klotnia for CBA, and Illinois Fourth Circuit Judge Ronald Spears for the IJA.
So what's in the proposal? First and foremost, it would amend Supreme Court Rule 13, "Appearances-Time to Plead-Withdrawal" by adding a new subsection (6) to subparagraph (c), "Appearance and Withdrawal of Attorneys." Under the proposal, lawyers would no longer need leave from the court to withdraw from a matter in which they are providing only limited representation.
As drafted, subsection (6) would permit a lawyer to enter a limited appearance in a matter as long as the lawyer and client had entered into a written agreement to provide limited scope representation under RPC 1.2(c). The rule would require the lawyer to file a "Notice of Limited Appearance" specifying the proceedings in which the lawyer is representing the party: in a specific court proceeding, such as a hearing on a motion to be held on a particular date; in any con tinuance of that matter; at the trial on a particular date; in any continu ance of the trial; until judgment; or as to some other aspect of the proceeding. After fulfilling their agreement for limited representation, lawyers would withdraw from matters by filing a "Notice of Withdrawal of Limited Appearance."
Helpfully, the proposal includes form notices for appearance and withdrawal with easy-to-fill-in blanks. The notice, which must be signed by both the lawyer and the party represented, specifies that the party is to remain responsible for all matters not specifically described.
It provides that the lawyer is attorney of record and available for service of documents only for the proceedings indicated. It also specifies that the party, whose address for purposes of service and telephone number are to be listed, must be served with all documents in the proceeding.
The notice contains a certification that the lawyer has completed all services within its scope and all acts ordered by the court. It provides that service is no longer required upon the lawyer but remains required on the party, whose address is again stated on the notice. It must be signed by the lawyer but need not be signed by the party and does not require court approval.
The LTF proposal would also amend SCR 137, "Signing of Pleadings, Motions and Other Papers-Sanctions," by adding two paragraphs explicitly permitting a lawyer to assist a self-represented person in preparing a pleading, motion, or other paper, with certain requirements.
As amended, SCR 137 would require lawyers to place on such papers the legend "Prepared with assistance of counsel under SCR 137" followed by the lawyer's name, firm or organization name, business address, and phone number. Though the proposed amendment also provides that such a legend will not constitute either a general or a limited appearance by the lawyer, it warns that a lawyer who does sign any paper will be considered to have filed a general appearance and may thereafter withdraw only by motion, pursuant to existing rules.
The proposal would amend SCR 11, which governs how to serve court papers, by adding a new subparagraph (d) providing that where a lawyer has filed a notice of limited appearance, papers must be served on the lawyer in addition to the party represented except for matters outside the scope of the limited representation. The rule would also state that service on the lawyer is no longer required after the lawyer files a notice of limited appearance, and that service is not re quired on any lawyer whose name appears on a paper containing the legend prescribed by SCR 137.
Finally, LTF's proposal would amend RPC 4.2, governing communications with those represented by counsel. A new paragraph would provide that a party is deemed represented for purposes of the rule when a lawyer providing limited representation provides the other party or counsel with a notice of limited appearance or other written notice that identifies a matter for which the party is being represented on a limited basis. The rule would also clarify that a party is not considered to be represented under the rule merely because a paper prepared with the assistance of counsel contains the legend required under SCR 137.
Excess capacity meets excess need
"Limited scope representation is an excellent idea whose time has come," says Timothy Eaton. "It will provide new opportunities for lawyers to represent clients, whether pro bono or for a fee, without having to remain involved until the case's end."
Eaton explains why, in his view, the supreme court should adopt LTF's proposal. "These changes will benefit lawyers, judges, and the courts. Without this rule, more and more lawyers will be reluctant to take cases in litigation. With the rule, a lawyer can get in on a limited basis, say, to draft a well-crafted complaint, maybe initiate discovery, or maybe in for a motion. The courts can only benefit from those services to litigants who otherwise would be wholly unrepresented."
Eaton believes the proposal's adoption would also provide lawyers with more educational and marketing tools to enhance their own and the legal profession's perceived value. "Encouraging limited scope representation can get more people in the doors of more lawyers' offices. That will provide those lawyers with more opportunities to connect with and educate those people about the value of lawyers' services. Some of those people, who otherwise would not have consulted lawyers at all, will then understand that it would benefit them to hire lawyers for full representation."
Champaign lawyer and Joint Task Force member John T. Phipps agrees. "Limited engagements present a great opportunity," Phipps wrote in his editor's column for the March 2010 issue of ISBA's General Practice Section newsletter. "[T]he public has shown that they want 'limited engagement agreements' so they can buy the legal services they really want when they either can't afford or do not want to pay for the full range of legal services that a lawyer can provide. The new rule opens this potential market be cause it allows solo and small firm practitioners to adopt the practices that can meet what the market wants."
Judge Spears sees limited scope representation as critical for effective access to justice for people of low and moderate means. "We all wish we lived in a world where everyone had full and competent legal representation on all legal matters. But we have a lot of unmet needs in this world.
"In today's economy, we have lawyers who would like to get the work but people who can't afford to retain them in full. There's excess capacity in the legal market and excess need in the consumer market. If we can allow the consumer to pay for only certain portions of their legal needs, we can use that capacity effectively."
Spears also says, "It would benefit the courts for litigants to have some representation on some critical aspects of a case instead of no representation at all." Noting that it's not unusual for judges to see pleadings that appear to have been prepared by or with the assistance of counsel but bear no lawyer's name, Spears says it's important for judges to know whether lawyers prepared those documents so that they can be sure that the party had legal counsel on that aspect of the case.
"There are some critical aspects of a case, such as settlement, where the judge needs to be assured that the documents are correctly prepared and that there will be a resolution of the matter," he said. "It's difficult for a court to assure itself that documents are sufficient where a party is proceeding pro se without the court's becoming a sort of an advocate. Knowing that a licensed attorney was involved in at least that aspect of a case will give the court some assurance that all the necessary matters are included in a document."
Another member of the Joint Task Force, Judge Michael B. Hyman of the Circuit Court of Cook County, says that "lawyers and judges
need guidance in the form of uniform procedures that will enable judges to manage pro se litigation in a better manner - more efficiently and uniformly - and assure fairness throughout the state, so everyone knows what the procedures are. That will make court calls go more smoothly and will help lawyers feel more comfortable with un-bundling."
Hyman also says, "We are getting more working poor representing themselves. People can't afford as much in the way of legal services representation as they could in former times. Unbundling is a meaningful way for the legal system to accommodate the needs of both those who are eligible for free legal services and those who cannot afford to pay for full legal representation."
"Unbundling" roundtables - coming to a location near you
John Thies said the task force hopes to reach a consensus and coordinate its recommendations to its respective organizations and, ultimately, to the supreme court rules committee. "When we met, we all agreed that there were a number of constituencies that would be interested in LTF's proposal. We thought it would be most helpful to create opportunities to hear from those constituencies."
To that end, he said, the task force was at presstime scheduling roundtable discussions at several locations, including Chicago, the collar counties, and downstate (see sidebar on page 514 for dates and locations). Thies said it's the task force's hope that anyone and everyone who has concerns about or an interest in the proposal will be able to appear at a roundtable discussion to express their views to the task force members.
If some who wish to be heard are unable to attend any of the discussions, they may express their views by sending letters to ISBA's
General Counsel, Charles Northrup, who has acted as reporter for the task force. Additionally, Thies said, ISBA has been surveying its standing committees and section councils for their positions and reasons for their stances on the proposal.
"LTF's goals, addressing unmet legal needs, improving administration of justice, and facilitating implementation of RPC 1.2(c) as it now exists, are all goals that we would embrace, in general terms," Thies said. "But there are also issues of ethics and professional liability that need to be considered with respect to LTF's proposal. We want to have a full discussion on the proposal so that we don't neglect to consider any important point."
LTF counsel David Holtermann adds his views to the task force members. "We understand that the specifics of the proposal may not be the final word regarding what will work best in Illinois courts. However, the framework and the major elements of the proposal, such as permitting limited representation appearances and document preparation assistance, are critical for making limited representation work effectively and really help pro se litigants."
October 21, 2010
3:00 - 5:00
Abraham Lincoln Hotel
& Conference Center
701 East Adams, Springfield, Il.
October 27, 2010
3:00 - 5:00
Chicago Bar Association
321 S. Plymouth Ct., Chicago, Il.
November 11, 2010
3:00 - 5:00
Four Points Sheraton
319 Fountains Parkway, Fairview Heights, Il.
So what's not to like about limited scope representation? Here are concerns raised by skeptics.
(1) It diminishes the practice of law, making lawyers form purveyors rather than counselors.
(2) Clients often don't know what they don't know. They may ask for less than full-blown traditional legal representation only to find themselves in over their heads - but only after they've already botched things badly. Lawyers and judges will still be cleaning up the messes caused by inadequate legal counsel.
(3) What happens if you want out of a case, or your limited representation is done, but the court won't let you go? You have an ethical obligation not to present frivolous arguments and pleadings, but how can you adequately investigate the truthfulness of your limited scope clients' factual claims when you're not being paid to and haven't been asked?
4) Ethics rules (see RPC 4.2) place strictures on when you can and cannot talk to another party who may be represented by a lawyer. But what if the other party has hired a lawyer for an undisclosed limited scope representation? What's your ethical duty and how do you meet it?