May 2020 • Volume 108 • Number 5 • Page 20
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Limited Scope Representation
Rethinking the Race
Limited scope representation can be a game changer for attorneys and clients in Illinois.
Blessed by the Illinois Supreme Court for transactional work in 2010 and for litigation in 2013, and achieved with changes to Illinois Supreme Court Rule 13, limited scope representation gives attorneys the ability to represent clients for only part of a case or matter.
Yet a decade after it first became an option, limited scope representation (LSR) has been used sparingly. An ISBA member survey undertaken in 2018 showed that less than half (42 percent) of attorneys have engaged in intentional LSR even once, and the vast majority (85 percent) received 10 percent or less of their income from limited scope work.
LSR is ideal for budget-conscious clients who might otherwise have gone pro se to hold down costs. At the same time, LSR opens new income streams for attorneys and eases the burden on court systems flooded with self-represented litigants.
The 2010 and 2013 actions were designed to enable Illinois attorneys to withdraw from representation without a court’s official permission. An official Illinois Supreme Court Rules Committee comment states, “A court’s refusal to permit withdrawal of a completed limited scope representation, or even its encouragement of the attorney to extend the representation, would disserve the interests of justice by discouraging attorneys from undertaking limited scope representations out of concern that agreements with clients for such representations would not be enforced.”
The ISBA has been urging the Supreme Court in recent months to amend Rule 13 to make the attorney’s ability to withdraw without court permission even more explicit, based on concerns that attorneys lack confidence that judges will allow them to do so—in part because of anecdotal experiences in certain jurisdictions. A more successful limited scope experience in neighboring Iowa, which has a court rule comparable to Rule 13 that provides greater clarity, has underscored the need for amending the Rule.
“The ISBA-proposed amendments would make withdrawal from a court matter automatic upon termination of the limited scope representation and the filing of a notice of withdrawal and completion of limited scope representation. The notice can be effectuated by filing or presentment in open court,” states a formal proposal the ISBA submitted to the Supreme Court Rules Committee.
Anecdotes having “chilling effect”
In his column in the January issue of the Illinois Bar Journal, ISBA President David Sosin cited the success of the Iowa-based The Law Shop by Skogerson McGinn LLC and noted that Iowa’s comparable Supreme Court rule has given firms like The Law Shop greater latitude with LSR.
“Iowa has a similar rule, but with important differences, including vital language that protects lawyers who have filed a limited appearance but get stuck in a litigation matter for which the court does not recognize the value of the concept and refuses to permit the lawyer’s withdrawal,” Sosin wrote. “Iowa gives us hope that real alternatives … exist. Limited scope models merit careful investigation.”
In a telephone interview, Sosin—a partner at Sosin, Arnold & Schoenbeck in Orland Park—noted that he doesn’t consider the slow pace of limited scope in Illinois to be a crisis. But he added that the ISBA leadership remains concerned about it and about anecdotes of judicial reluctance.
“These stories may have a chilling effect on lawyers taking limited scope engagements, which we believe is one of the key areas that can enhance access to justice—if we can educate the public and our lawyers as to the advantages,” he says. “We’ve been told that in places where it has caught on, it’s very-much accepted and appreciated by the judiciary. It has the potential for resulting in fewer self-represented clients in key areas of proceedings where, with the assistance of a lawyer, they can reduce the burden on the court.”
In addition to tweaking Rule 13, the ISBA plans to undertake publicity and education campaigns for judges, lawyers, and the public to disseminate information about what LSR is, how it works, and how it can help each of these groups.
“We are including access-to-justice training as part of our program and emphasizing limited scope engagement as one solution,” Sosin says. “We will reach out to the judiciary, to the chief judges, and, in the coming months, we will have a traveling listening tour—the timing of which will be dependent upon the status of the COVID-19 pandemic—organized by the Supreme Court.”
Along with Chief Justice Anne Burke, Sosin plans to moderate initial tour sessions perhaps even after his term as ISBA president ends June 18. “We’re going to be questioning chief circuit judges, other judges who attend, and lawyers as to what their experiences have been and how we can make limited scope representation work effectively for everybody,” he says. “Certainly, cost is an issue. And the efficacy for lawyers—how does it work? If I take a limited scope litigation matter, what happens when that scope is over?”
Sosin imagines that the listening tour also will cover the issue of how engagement letters and agreements should be written. “We’ve learned that there are different levels of limited engagement, which fall variously short of full representation in a matter,” he says. Letters and agreements need to fully account for “the understanding that’s reached between a lawyer and the client as to how far the lawyer goes and what the expectations of the client are.”
“Completely understandable” resistance
David Holtermann, associate director and general counsel of the Lawyers Trust Fund of Illinois, agrees that limited scope is not widely understood and thus underutilized. But he says attorneys’ reluctance to providing LSR is “completely understandable.”
“That’s not how most of us have been trained in either law school or practice. It does feel like something that is different, especially if you are coming from an experience where you are providing traditional full representation,” he says. “That speaks to the need for more education for people who are lawyers right now, for law students, and for people joining the profession to have information or guidance about this from an ethical point of view.”
The concept and practical aspects of limited scope need to become normalized and seen as less unusual for the resistance to fade, Holtermann suggests. He sees the need for education and support within the judicial system, including for clerks and other personnel so they understand the procedural elements. And he believes more marketing to the profession and to the general public needs to take place.
“The other challenge with it not being well understood are the actual practicalities of how you make an appearance and how you withdraw?” he says. “If it’s in the court system, when is the attorney on, when is the attorney off? The details of these procedural elements are not universally agreed upon. If we get to a state where it’s just the normal course of business that a certain number of litigants are being assisted on a limited scope basis, that’s worth striving toward.”
Holtermann feels hopeful that the efforts of the ISBA and a parallel Chicago Bar Foundation task force on the matter will accomplish the goals of simplifying procedures and making LSR less burdensome. “They’re both going in the same direction,” he says. “That could be a very impactful change, and I am optimistic that the Supreme Court will take a close look at it through its committee process and reach a conclusion in support of modifying that rule.”
A boon during social distancing
Illinois attorneys who offer LSR are seeing unexpected benefits from it. Matrimonial attorney and ISBA Second Vice-President Anna Krolikowska, of K & R Family Legal Services LLP in Northbrook, says the advantages of LSR have been on the top of her mind during the coronavirus pandemic, which has shut down court systems throughout the state.
“I’m lucky that part of my practice is limited scope and is focused on collaborative-process outcomes rather than in-court proceedings,” she says. “We’re meeting outside of the court setting and discussing and arriving at settlements. Some clients are choosing not to meet; some are transitioning to videoconferences. But having nontrial pieces of a case allows us to continue working.”
Divorce attorneys who are engaged in LSR by preparing documents covering overall marital settlements or a parenting-allocation judgment, for example, can still do that sort of work outside the court setting, Krolikowska notes. “If the limited scope representation is intended to provide an attorney to represent a client in the court setting, that’s a little bit different,” she says. “Those types of cases will not be able to go on for the next few weeks or a month.”
But encouraging LSR goes far beyond the limitations imposed by the COVID-19 pandemic, Krolikowska says. “The goal is to allow litigants to have access to attorneys, hire them for a piece of the work that’s allowed to be done, and to control costs,” she says. “Assuming it’s mutually agreeable, assuming the attorney is willing to take on that work and a client wants to hire an attorney for that specific limited type of work, theoretically that would be the extent of the involvement.”
But Krolikowska agrees with the ISBA’s stance that Rule 13 needs to clearly state the attorney’s job is done as soon as the scope of work agreed upon has been completed. “His or her appearance should be concluded,” she says. “In Iowa, the way its rules are phrased, upon completion of the scope of work, the attorney would file a notice that the scope is completed. Then the attorney’s appearance is withdrawn. In Illinois, you have to ask the judge for his or her signoff. Sometimes, that can get a little bit complicated.”
In Iowa, attorneys have become more willing to take on LSR due to a combination of, first, tacit understanding that they will—no questions asked—be able to withdraw and, second, greater awareness of the availability of LSR, Krolikowska believes.
“One, they made it easier and more appealing for attorneys to utilize limited scope representation,” she says. “Two, they’ve done a better job of informing the public of the availability of these types of engagements. And three, it’s appealing to attorneys because they can do the work, get paid, and, if their scope of representation does not involve litigation, by filing that notice they’re out of the case.”
The Iowa experience
LSR did not immediately take off in Iowa when the appropriate rules were enacted more than a decade ago, according to Amy Skogerson and Andrea McGinn, cofounders of The Law Shop, an exclusively unbundled law firm based in Van Meter, Iowa.
But Skogerson and McGinn saw the potential. After attending an international conference about unbundled services, they decided to bring the concept home. In the past two and a half years, the firm has grown from just the two of them to five attorneys, two full-time staff, and room for more.
“We came up with processes to get forms and systems going in our office,” McGinn says. “We talked to judges about it. When the rules were enacted, we thought this was going to create massive change. But nothing happened. So, we blazed the trial for it here in Iowa and now we’re seeing it all over the state.”
As McGinn and Skogerson train other attorneys on LSR, they are realizing that many lawyers have been providing LSR without realizing it. “We usually do a poll and have people raise their hands,” Skogerson says. “Who has advised a client without entering an appearance? Who has helped a client draft a document? Those things are limited scope, but we never assigned that label to it in the past.”
County courthouses and the Iowa State Bar Association have compiled lists of attorneys who offer LSR, McGinn says. But Skogerson says The Law Shop was the first to lean heavily into the concept. “We hit the ground hard doing our own marketing,” she says. “We went onto social media and created firm swag that we give away—hats and T-shirts. We use a lot of humor.”
Not just limited-income clients
A key insight propelling their success has been the realization that LSR is not just something you do for people who can’t afford other services, Skogerson says. “There are a lot of myths we’re trying to dispel,” she says. “No one had taken the approach of, ‘I want to make a business of this that’s profitable.’ We are very clear that we do this to help people. But we also need to make money from it. We have created a lot of systems that help to avoid ethical and financial pitfalls most firms are afraid of encountering.”
In addition to making more money while helping more people, Skogerson and McGinn reinforce in their training workshops how de-stressing limited scope practice can be. “Attorneys who come to our workshops are burnt out,” McGinn says. “When you tell attorneys that you can still make money, help people, and live a less stressful life—that’s a huge hook for them.”
But part of why attorneys resist shifting gears is precisely because they’re burnt out, Skogerson says. “Maybe it’s because they’re doing pro bono work—sometimes by accident rather than on purpose,” she says. “Judges have seen the need for limited scope representation—they’re drowning in all these pro se litigants. Clients didn’t have to be convinced. The only Iowans who had to be convinced are attorneys.”
Skogerson and McGinn advise attorneys to unbundle services, which allows one to step away from a docketful of stressful cases and provide a menu of choices. “What’s that going to be costing?” Skogerson says. “You’re putting a lot of healthy boundaries around everything. Not only is this the most fun I’ve ever had and the least stress I’ve ever had, it’s also the most profitable.”
Interest in The Law Shop’s approach has mushroomed in Iowa. When the firm launched, Skogerson and McGinn were giving 30-minute presentations at state bar CLE programs. Now, they’re doing full-day workshops with waiting lists. “We just needed to have enough traction,” Skogerson says. “We’ve had trainees who went out to duplicate our style and others that took it and spun it off in a whole new direction. It’s opened innovative, creative minds.”
McGinn believes that judges in Iowa have bought into it with little hesitation and acknowledges the progress would be more challenging otherwise. “We had one judge tell us that five minutes of an attorney’s time for a pro se litigant is better than nothing,” she says.
“There is a huge part that judges can play in this,” Skogerson adds. “Our judges are silently suffering, and we don’t always know it. Some offer to show up at our workshops or presentations and put in a good word.”
The typical client
Clients of The Law Shop are typically intelligent, articulate, middle-class people who are willing to pay an attorney for specific services, Skogerson says. “But they don’t necessarily have $10,000 set aside for their divorce,” she says. “We have to choose how we can be the most effective and create a plan that fits into the smallest of budgets.”
Skogerson’s first limited scope client was a man who earned a six-figure salary, as did his now-ex-wife. They attempted to file pro se. “They had done a beautiful job working their own way,” she says. “But they got stuck because the court required a child-support worksheet. They kept going to the courthouse and the court kept rejecting their attempts.”
So, the husband hired Skogerson to do that and also asked that she draft the settlement agreement. “They were super satisfied with it. It worked beautifully,” Skogerson says. “I don’t offer service agreements that are all-inclusive. For example, our ‘full service’ does not include trial representation. We think going to trial should be a completely separate conversation. We want a pause before we go in that direction. I have clients who have next to nothing. I have clients who have millions of dollars.”
“We have bleeding hearts sometimes, and we want to help them,” McGinn says. “Part of our message [to attorneys] is, you don’t have to do that. Help them in the most important spot in their case. It’s just a different conversation: ‘I see that you have this issue. This is what I can do to help. Here’s what that service costs.’” In doing so, they are able to set boundaries with clients as to what services they can expect, she says.
Attorneys are trained to wrap their arms around any and all issues. Part of the hesitation about LSR is that attorneys don’t like to feel like they aren’t taking care of a client’s whole set of needs, Skogerson says. “But some clients are perfectly happy to take care of their own needs. They just need some guidance,” she says. “People do negotiate differently when they know you’re not in it for everything.”
LSR could help restore the perception of attorneys as problem solvers, McGinn says. “Many people don’t come to us because they reason, ‘If we get lawyers involved, it’s going to throw gasoline on the fire,’” she says. “The percentage of people who come in for a single service and then come back because they see the value we can give them—that reflects a shift in the public’s perception of us.”
Attorneys, judges, and clients should look at LSR as one big versatile tool in the toolbox, McGinn says. “We need to be more intentional about it. The public needs to be aware that this is an option. When we have our initial appointment with a client, we say, ‘Here’s our options for representation.’ Even if Joe doesn’t want the LSR, or the one-single-service thing, he knows a friend down the street who only wants to spend $500 on his whole divorce. It’s about helping get that word spread.”
Holtermann hopes the same will happen soon in Illinois. “It doesn’t surprise me at all that the practitioners at The Law Shop are able to make a go of it,” he says. “There’s no reason that Illinois practitioners couldn’t. But I think if the rules were simpler and easier to follow, it would be easier for Illinois practitioners to offer it in a cost-effective way.”
Ed Finkel is an Evanston-based freelance writer.