Publications

Illinois Bar Journal

The Magazine of Illinois Lawyers

October 2013Volume 101Number 10Page 508

October 2013 Illinois Bar Journal Cover Image

Law Practice Management / Ethics

Limited Scope, Expanded Opportunity

By
Ed Finkel

Recent Illinois Supreme Court rule changes enable lawyers to represent clients in litigation for only a portion of a case. Proponents hope limited scope representation will generate business for lawyers, help clients save money, and make pro se cases easier for judges to manage.

After several years of debate, the Illinois Supreme Court in June handed down a series of rule changes that mark the start of a new era for the state's litigators, litigation clients, and court system.

Known as "limited scope representation," and contained mostly in an amendment to Supreme Court Rule 13, the changes mean that lawyers can now provide representation in litigation - as they have been able to since 2010 in transactional matters - for a portion of a case without being bound to the whole.

The concept received support from a joint committee formed by the ISBA, Chicago Bar Association (CBA), and Illinois Judges Association (IJA) partly because it would provide working- and middle-class litigants who worry they can't afford legal services (but who are not poor enough to qualify for legal aid) an avenue to pursue litigation without taking on a case completely pro se.

This, in turn, provides business for litigators they wouldn't otherwise get, and offers help to otherwise pro se clients, whose cases tend to clog court dockets due to laypersons' relative unfamiliarity with the judicial process.

David Holtermann, general counsel of the Lawyers Trust Fund of Illinois, which first proposed the rule changes, figures a potential client might think: "I'm having a hard time keeping my thoughts organized, standing in front of a judge. I want to hire you, a lawyer, to accompany me to that hearing and be my advocate. That's it. I'm not going to hire you to do the rest of the case."

He adds: "The amendment to Supreme Court Rule 13 says it's OK to do that, and it sets out the procedure and some guidelines about how to do that, which is very important. A lawyer is not going to make a limited appearance unless it says, in black-letter law, 'You can do this, and once you've done this, you're finished with the case.'" And limited scope representation isn't confined to court appearances - an attorney could also help prepare a pleading but not actually appear. (For a long list of limited-scope resources, see Holtermann's sidebar on page 510.)

An 'entirely new thing'

The rule changes, which also include amendments to Supreme Court Rules 11 and 137, are the latest chapter in a story that began when the supreme court adopted new Rules of Professional Conduct effective January 1, 2010, Holtermann says. Among the updates was an amendment to RPC 1.2(c) to say that an attorney may limit the scope of representation where it is reasonable under the circumstances and the client gives informed consent.

"The rule already existed that it was permitted, but it hadn't been fleshed out in a way that would facilitate it," says John Thies, past president of ISBA and a co-chair of the special ISBA-CBA-IJA committee. "We thought this would allow greater service in a pro bono context, and the legal aid community was very supportive, but also in for-fee clients. There were clients who wanted lawyers to be involved in a case, but couldn't afford to have a lawyer involved in every aspect of the case."

"We had some rather heated discussions and tried to come up with things that worked for everybody," adds John Phipps, a Champaign attorney and task force member, who co-founded Land of Lincoln Legal Assistance.

In June, Illinois became one of more than 20 states to extend the limited scope principle to litigation. "The limited scope appearance is an entirely new thing in Illinois," Holtermann says. "There's nothing really analogous to it. It's a pretty big shift. Typically, if you appear in a case as a lawyer, you're committed, and you're not going to get out if there's some kind of disagreement with a client; that's a matter that's subject to a petition, and the court has to approve your withdrawal."

The Illinois Supreme Court more or less accepted the joint committee's proposal, Thies says. "It was a real collaboration: we worked together as bar associations, the Lawyers Trust Fund, the court committees on professional responsibility and Supreme Court rules, and of course Chief Justice Tom Kilbride was a very passionate force in this," he says.

"The issue is where do we go from here? I suspect lawyers are becoming more and more familiar with these new rules. There needs to be a lot of education to ensure that lawyers know about them and can start putting them to good use."

Easing withdrawal pains

Among the clarifications the new rules provide are how to define, beforehand, when and how an attorney can withdraw from a case, Thies says. "Historically, lawyers have been cautious about getting into cases where they didn't have much control over their ability to get out," he says. "What was accepted by the court was the proposal that there would be an automatic withdrawal approach. Judges wouldn't have discretion [to require an attorney to remain]. That will cause lawyers to be more likely to take cases."

Prior to the rule being adopted, it wasn't clear that lawyers had the ability to agree to such withdrawals, Phipps says. "There were a lot of issues as to what we could do, what we could not do, whether judges would recognize limited engagement, and how you got in and out of a case," he says. "In a lot of cases in different counties, judges would not let a lawyer out. Lawyers were reluctant [to do limited scope], and the judges didn't have any guidance as to what they could do."

Of course, attorneys must make perfectly clear in their client agreements what they will and won't do, Thies says. "We encourage lawyers, where you undertake limited scope representation, to be as clear as possible as to the four corners of representation, so there is no doubt that when you've done what you said you would do, you have the right to an automatic withdrawal," he says. "You certainly need to have a fee agreement."

Although the committee did not conclusively decide the issue, the court ruled that ghost-writing of documents like pleadings would be permissible because "some lawyers said they were concerned about putting their name on a document, and the client might change the document," Thies says. "Part of our work as a committee was that we had a series of hearings around the state, and we invited legal aid lawyers and others to come out and talk to us about how the rule changes would play out. We heard the perspective that the court ultimately bought into."

Where will limited scope have the biggest impact?

Legal aid. The rule changes will help a variety of stakeholders, Holtermann says, including "lawyers who work for a fee, or members of the public who are not so poor that they qualify for legal aid, but they don't have the funds to finance an open-ended, two-year divorce case." "I certainly hope that it will help some lawyers develop business and attract clients where they're having difficulty doing so. It will also be tremendously useful to legal aid organizations. Frankly, I think legal aid is probably at the front of the line of lawyers who are most poised to take advantage of this right away."

Chicago Volunteer Legal Services (CVLS) Executive Director Margaret Benson wants to train both volunteers and their supervisors in when and how to avail themselves of the changed rules allowing limited scope representation. "We may start to do some of that. We haven't," she says. "This is a good rule. It will open up some doors."

Benson agrees it will help those who can't qualify for legal aid or afford a market-rate lawyer. "This way they could go to a lawyer, even a neighborhood lawyer, and give them less money for a limited appearance," she says. "They could show up for the initial step and then be done.…It can really expand what lawyers can do for people. There are processes and legal matters that are not that complicated."

Small claims. Thies imagines that small claims cases will be high on that list but says of the task force, "We didn't speculate about the range of cases that might benefit directly. Virtually every aspect could be affected by it, starting with the pleadings. Most general practitioners have clients that have come in and said, 'This is not enough at stake, so I'm not going to have you represent me. But could you help me through drafting of a pleading? But could you help me by taking a deposition or drafting a brief?'

"Those are all things out of court," he says. "From the standpoint of situations in court, the example would be, 'Could you come and argue for me? Can you conduct the trial? Could you handle this appeal?'"

Phipps practices in Champaign and several adjoining counties, and he's handled cases as far away as Carbondale and East St. Louis. "It allows us to multiply our effectiveness by allowing a lawyer to do the things a lawyer needs to do for a client, and not make multiple appearances, and go from Alton to Quincy for a status hearing," he says. "Judges are getting better at letting us do phone call hearings. A lot of times for the status hearings and the more routine-type things, the limited engagement is the way to go. It allows us to draft the necessary pleadings for the client and let the client go [present them]."

Small claims matters can end up costing an additional $2,000 or $3,000 - for a case that's worth less than $15,000 to begin with, by definition - due to attorney appearances at routine preliminary hearings, Phipps says. "It just doesn't justify the fee," he says. "You have the client do those routine things and then you take the deposition and plead the case.… I've done several cases where I've just gone in and done the trial. Or, this allows you to get out of the trial after you do your part."

Family law. Holtermann thinks family law will be the most frequently affected, although other relatively simple cases like landlord-tenant disputes and small claims would be "ripe for that kind of appearance. Somebody's not going to make a limited appearance in a malpractice case. At the same time, you're not going to see self-represented people pursuing malpractice cases." He adds, "Where do we see the most litigation and most unrepresented litigants? It's in the family law setting. This could really make a difference in that setting."

Benson agrees, but says CVLS is moving carefully. She wants to minimize the risk that volunteers will get themselves and their clients into a situation they hadn't expected. "It makes me nervous because people can get themselves into a lot of trouble starting a fight they can't finish," she says, posing a scenario in which a divorcing mother files for child support - which in turn prompts the father to file for custody.

"'If I have to pay for the kid, I want the kid,'" Benson says, quoting the hypothetical father. "Dad has an attorney because he has money. He's working. Mom's suddenly up a creek. I want volunteers to be really careful. If Mom really, really wants to file that child support petition, she at least needs to know what she's walking into. Bottom line, we will be able to expand services. But I always worry that it needs to be done very, very thoughtfully."

Champaign County has contested divorce calls on Tuesdays and Thursdays, and Phipps says the numbers of pro se cases have at least doubled, if not tripled, "which is creating problems for the courts." Limited scope would enable an attorney to simply glance over a marital settlement to point out any red flags, he says. "The agreement says we're not taking any discovery, we're not charged with doing anything more than that. It opens up a lot of options for clients."

Introducing 'wary consumers' to using lawyers

From judges' perspective, Phipps adds, "This is giving the court the benefit of having a lawyer for the hard stuff rather than having to cope with the pro se clients. Litigation is expensive, and this limited engagement rule levels the playing field, and makes it possible for people to hire lawyers to do the important stuff. An awful lot of routine status calls go with these kinds of proceedings."

"Anything that puts more lawyers into the process is good for the court system," Benson says. "There might be problems, but we're betting - those of us who were involved from the beginning - that the solutions and the help will outweigh the problems.… It may not be the perfect solution, but it will put lawyers in, and that's a good thing. People who are afraid of going to a lawyer because they think it's going to cost too much, they come in the door because they'll have more control."

In some instances, she adds, "They'll end up staying with the lawyer for the whole case. It introduces the wary consumer to the process."

"I hope we will see an increase in representation for people of limited means," Thies says. "I also hope we will see an increase in representation of clients who are paying clients, but for one reason or another are not wanting to retain the lawyer for the entirety of the case. In both of those areas, it will be a strong statement for greater access to justice, and also for the administration of justice. To the extent we can have greater lawyer involvement in our court system, it is necessarily better for the administration of justice.…"

"Anybody who has gone to a court call with a lot of pro se people knows it just doesn't go smoothly," he adds. "We saw judges as stakeholders in this. They were a full partner as part of our joint committee. We know they're going to be the ones who are on the front lines of making the system work."

Effective representation, affordable cost

Phipps can't say he's gotten too many calls for limited scope as such to date, but he thinks attorneys might end up suggesting it to wary clients rather than the other way around. "When we get into these cases and look at what's involved, we can say, 'Here's what we can do, and here's what you can do, and it will save you this.' We use that as a way to help the client," he says. "It gives the flexibility to do that without having to tilt at all the windmills."

Solos and small litigation firms, in particular, will be most likely to adopt a limited scope model due to the economy, Phipps predicts. "Hopefully the courts will adapt ways to deal with some of these things, to cut out some of the court appearances and those things," he says. "There's all kinds of possibilities. I'm not sure where it's going, but I do see that we'll do more and more of that model. It will be essential to the economic viability of the legal profession to do that. There's only so much money that people can pay."

The sweet spot for limited scope will be providing effective legal representation at an affordable cost, Phipps says. "There's an awful lot of legal needs out there that aren't being met with effective representation," he says. "It's something that benefits the courts, the legal profession and most of all, clients. It gives clients access in ways they didn't have before. It helps the legal profession meet unmet needs. It's an important change."

Ed Finkel is an Evanston-based freelance writer.

Limited Scope Resources for Illinois Practitioners

This guide is an outline of the key legal references, background information, and resources about how to offer limited scope representation to prospective clients in Illinois. For links to everything listed here, visit www.isba.org/limitedscope.

This information is designed to help orient lawyers to limited scope representation. It is not the final or complete word on how to provide limited scope representation within the bounds of the Illinois Rules of Professional Conduct or according to a professional standard of care. Lawyers consulting the information linked to from this page should use their professional judgment in determining how to provide limited scope services.

Illinois legal references

Limited scope representation is governed by the Illinois Rules of Professional Conduct and the Supreme Court Rules. Supreme Court Rules 11, 13, and 137 were amended effective July 1, 2013 to permit lawyers to provide limited scope representation in civil proceedings.

Rule of Professional Conduct 1.2. Paragraph (c) permits lawyers to limit the scope of their representation where reasonable under the circumstances and with the client's informed consent. See also comments [6]-[8].

Rule of Professional Conduct 4.2. Comment [8A] addresses communications by a lawyer with a person represented on a limited basis under RPC 1.2(c).

Rule of Professional Conduct 5.5. Comment [3] states that lawyers may counsel non-lawyers who wish to proceed pro se, including through assistance provided under Supreme Court Rules 13(e) and 137(c)(6).

Supreme Court Rule 11. Paragraph (e) contains the requirements for service when a party is represented by a lawyer making a limited scope appearance pursuant to Supreme Court Rule 13(e).

Supreme Court Rule 13. Paragraph (c)(6) permits and lays out the procedures for lawyers to make limited scope appearances in civil proceedings. Paragraph (c)(7) addresses withdrawal from limited scope appearances. The rule contains the forms required by the rule (the forms are linked to below). The commentary discusses limited scope appearances and withdrawal in detail.

Supreme Court Rule 137. Paragraph (e) allows lawyers to provide document preparation assistance to self-represented persons without making an appearance. The committee commentary adds further detail to the provisions of paragraph (e).

Illinois forms

Lawyers making limited scope appearances under Supreme Rule 13 must use forms specified in the rule. The forms are listed here and linked to at http://www.isba.org/limitedscope as a convenience, but lawyers should be familiar with the requirements of Rule 13 and the other rules listed above before using them.

• Notice of Limited Scope Appearance

• Notice of Withdrawal of Limited Scope Appearance

• Objection to Withdrawal of Limited Scope Appearance

Illinois background

The Rules of Professional Conduct of 2010 adopted by the Illinois Supreme Court included a revision to Rule 1.2(c) to expressly permit lawyers to limit the scope of their representation. Here's a list of articles and reports exploring limited scope representation in Illinois in the wake of that rule change.

Editor's Column, ISBA General Practice, Solo & Small Firm Newsletter (March 2010)

Limited Scope Representation is Here, CBA Record (April 2010)

Unbundling Explained, Illinois Bar Journal (October 2010)

Limited Scope Legal Representation: Final Report, Findings & Recommendations, Joint Task Force on Limited Scope Legal Representation (May 19, 2011)

Limited Scope Legal Representation: Issues for the Illinois Bench & Bar, Joint Task Force on Limited Scope Legal Representation (2010)

Practice resources

Here is a small collection of non-commercial materials and other resources published to help lawyers provide limited scope representation - again, links are at http://www.isba.org/limitedscope. These may give useful guidance, but they are not specifically tailored to Illinois practice. Fee agreements and related materials are presented as samples.

Expanding Your Practice Using Limited Scope Representation, M. Sue Talia and the Practising Law Institute, 2012. This is a three-hour web-based CLE program presented free of charge by PLI.

General Civil Limited Scope Representation, Risk Management Materials, Limited Scope Representation Committee, California Commission on Access to Justice.

• Limited Representation Materials, assembled by the Kansas Office of Judicial Administration. (Some of these materials duplicate information contained in the California Risk Management Materials listed above.)

Sample Limited Scope Representation Agreement

Best Practices for Limited Scope Discrete Task Legal Services

Client Brochure on Limited Scope Representation

Handbook on Limited Scope Legal Assistance, American Bar Association Section of Litigation


Login to read and post comments