Pro Bono Attorneys Deskbook
Representation a/k/a Unbundled Services.
Why not order
can order a seven course meal at a fine restaurant or the meal in a box
at the fast food joint but sometimes it is more cost and time efficient
to order à la carte or the burger without the fries and super-sized
drink. Limited scope representation, also referred to as “unbundled
services” offers the à la carte or cafeteria menu of legal services.
representation is a practical approach to pro bono legal
services. If the matter is simple and the pro bono client
capable, time and expense can be saved by the limited scope
representation approach. Many pro bono clients are capable of
acting as pro se litigants with limited assistance. For example,
the lawyer may draft the pleadings and a proposed judgment then coach
the client on court procedures and never go to the courthouse. Another
example, properly instructed the client can file his or her own
pleadings, request service and appear at a default docket hearing rather
than the attorney doing tasks which do not require an attorney’s
This virtual Deskbook for Pro Bono Attorneys gives numerous tools and forms for limited representation.
On December 21, 2007, the Supreme Court
of Missouri approved amended rules regarding limited scope
representation. On June 23, 2008 the Court
order correcting its order
of December 21, 2007 regarding Rules 55.03 and 88.09 and a
separate order promulgating
a replacement Rule 4-1.2, with comment. These rules become effective July 1, 2008. The
new Supreme Court rules are intended to promote and facilitate
limited scope representation especially for the benefit of financially
needy persons who otherwise may be denied access to justice.
Is limited representation authorized?
Yes. Limited scope representation has
been authorized for a long time. Rule 4-1.2(c) even before the recent
amendment authorized limited scope representation if the client consents
but left many questions unanswered. Rule 4-1.2(c) provides, “A lawyer may
limit the scope of representation if the client gives informed consent
in a writing signed by the client ….” The requirement of "a
writing signed by the client" does not apply to an initial consultation
or to pro bono services provided through a nonprofit organization,
court-annexed program, bar association, or accredited law school. The new rule expands upon the
authority in order to facilitate limited representation practice
especially in assistance of needy persons.
First ask, “Is
à la carte
menu healthy for your client?”
A restaurant would not serve raw pork
merely because the customer requested it. The client’s request for
limited services may not be in the best interests of the client.
Separating some legal tasks may fragment the client’s case beyond
benefit. For example, can a lawyer appear at trial to interrogate only
one witness without being present for the whole trial? Can a lawyer
responsibly write only one paragraph of a pleading without reviewing the
whole pleading? The first question is whether short term, limited
representation is reasonable in the circumstances of the matter.
The lawyer should advise the client on the reasonableness of limited
representation and agree on the parameters in the best interest of the
client. In certain situations, the lawyer may well advise the client
that limited representation is not reasonable and not in the client’s
best interest. Comment 2 to new Rule 4-1.2 states: "An agreement for
limited representation does not exempt a lawyer from the duty to provide
competent representation . . . ."
Testing the client’s self-representation skills:
Questionnaires about the basic
information are helpful to the attorney preparing a case. When you have
a potential self-represented client, consider having the client take the
questionnaire home and fill it out without your assistance. If the
client has a lot of trouble with a basic questionnaire, odds are they
will have trouble communicating with clerks and judges. This is one way
to get a preliminary reading on the client's abilities. Your oral
interview will also give you a feel for their ability to respond to
requests from clerks and judges.
questions to weigh: Can the
client communicate with the court satisfactorily? Persons who have
mental limitations, do not speak English well, or have literacy
limitations may not be able to represent themselves. If the opposing
party has an attorney providing full representation, the playing field
may not be level. Are the legal or evidentiary issues simply too complex
Agreeing on Limited Scope Representation.
Rule 4-1.2(c) requires a
written understanding between the lawyer and the client setting forth
the terms of the limited representation. "A lawyer may limit the
scope of representation if the client gives informed consent in a
writing signed by the client to the essential terms of the
representation and the lawyer's limited role." Use of the form approved by
the rule or a substantially similar form creates a presumption of
limited representation. The sample
form serves as a guide to your consultation with the client. Discuss the
topics listed and clearly agree on which the lawyer will do and also
which he or she will not do. Click here for an editable copy of the
There are three situations
where the requirement of a writing signed by the client does not apply.
“(1) an initial consultation with any lawyer, or (2) pro bono services
provided through a nonprofit organization, a court-annexed program, a
bar association, or an accredited law school, (3) services provided by a
not-for-profit organization funded in whole or in part by the Legal
Services Corporation established by 42 USC Sec. 2996b.”
Rule 4-1.2(d). Because of the nature of
pro bono practice,
exceptions 2 and 3 were included. Pro bono attorneys working “through”
such programs are exempted from the requirement of a signed agreement.
Nonetheless it would be good practice to use a written agreement where
Must the limited representation lawyer sign documents prepared for
otherwise self-represented clients?
In general, pleadings must be signed by
an attorney or the party if unrepresented. However, the new rule
expressly says “an attorney who assists in the preparation of a
pleading, motion, or other filing for an otherwise self-represented
person is not required to sign the document”.
Rule 55.03(a). It is beneficial to the court
to know that an attorney has reviewed the document. Also it will
benefit the client because if there is a defect in the document, the
judge will know that he or she can suggest that the litigant return to
the attorney for further assistance. However, read the cautions below as
to entry of appearance.
When drafting documents for an otherwise self-represented client, must
the lawyer make an independent inquiry into the facts?
New Rule 55.03(c)(3) provides, “An
attorney providing drafting assistance may rely on the otherwise
self-represented person's representation of facts, unless the attorney
knows that such representations are false.”
What constitutes entry of appearance?
new Rule 55.03(b)(2) an attorney’s
signing any pleading or motion constitutes a general appearance unless a
Notice of Limited Appearance is filed with the court. "An
attorney appears in a case by: . . . (2) Signing the attorney's name on
any pleading or motion, except that an attorney who assisted in the
preparation of a pleading whose name appears in the pleading solely in
that limited capacity has not entered an appearance in the matter . . .
An attorney may also enter
an appearance by "[p]articipating in any proceeding as counsel for any
party" or "[m]aking a written appearance." If limited representation is
intended in any such situation, it is necessary to file a notice of
New Rule 55.03(b)(1) & (3).
What if the pro se litigant alters the document before it is filed with
the court? This can be
avoided by some precautions. If the lawyer drafts the entire
document and chooses to sign it, good practice would be for the lawyer to
file the document and not the client. If the lawyer only assists the
client in the drafting of the document, the lawyer should preserve a
copy of the document as drafted with the lawyer’s assistance. Adding a
notation to the copy such as “This is a true copy of the above document
as prepared with the assistance of (name of lawyer) on (date)” and
having the client sign the notation would be a good practice to prevent
future debates as to the content of the attorney's assistance.
Let the court and opposing parties know that your representation is
representation will work better is the players know the ground rules.
If you fail to file a Notice of Limited Appearance with the court
you may find that you have entered a general appearance. New Rule
55.03(b). Service and client communications are addressed next.
Are court and opposing party communications to be made to the lawyer or
the pro se litigant? It
depends. Opposing counsel may communicate with the "otherwise
unrepresented" party unless counsel for that party has given opposing
counsel notice to the contrary. Merely providing limited scope representation does not
authorize or require communications with the lawyer.
However, the lawyer may in the terms of the written notice to the court
and opposing party, with the consent of the client, provide that
communication for a defined period shall be to the lawyer and not the
New Rule 4-1.2 provides: “An otherwise unrepresented
party to whom limited representation is being provided or has been
provided is considered to be unrepresented for purposes of communication
under rule 4-4.2 and 4-4.3 except to the extent the lawyer acting in the
scope of limited representation provides other counsel with a written
notice of a time period within which other counsel shall communicate
only with the lawyer of the party who is otherwise self-represented.”
What effect does limited scope representation have on service of
Rule 43.01(b) which took effect July 1, 2010 states, "If an attorney
has filed a notice of limited appearance for an otherwise
self-represented person, service shall be made on:
(1) The self-represented person, and
(2) Until the attorney files a
termination of limited appearance, the attorney.”
Use of Forms: In
the area of family law the Supreme Court has approved forms designed for
pro se litigants. The materials can be accessed at
Yourself in Missouri Courts: Access to Family Courts."
New Rule 88.09(b)
authorizes Supreme Court approved forms for the pleadings, forms, and
proposed judgment for use in dissolution of marriage, legal separation,
parentage or modification of judgment proceedings. The rule provides
that these forms “shall be accepted by the courts of this state.”
Where a litigant is not represented by counsel, the new
Rule 88. 09 mandates the use of the approved forms. Where the
otherwise self-represented litigant is represented by counsel for the
purpose of drafting pleadings, forms, and proposed judgment, it appears
that the approved forms are not mandated since the litigant is
represented for that purpose even though otherwise unrepresented. The
lawyer providing limited representation in drafting documents may use
his or her own forms. The Rule provides that the trial court may waive
the required use of the approved forms (Rule
If you use your own forms and not the Supreme Court approved forms,
adding the notation “Prepared by Counsel” is important so that it is
clear that the client was represented by counsel in the preparation of
the documents. Otherwise the pro se client would be mandated by
Rule 88.09(b) to use the approved forms. Also, it would be wise to
file a notice of limited scope appearance to avoid being deemed to have
entered a general appearance.
the limited representation lawyer uses his or her own forms, the
approved forms are useful. One approach is to give these forms to the
client to fill out and return them for your review. Even if you chose to
use your own forms, the pro se forms provide a good work sheet
for the client to assemble the information which you will need to
prepare your own documents and to assess the client’s skills at
When does the
limited appearance end? Is a court order required?
It is the intent of the new rules to give the client and his lawyer
control of termination of representation and appearance. Appearance is
ended by the lawyer's completing his or her duties and filing a notice
of termination of limited appearance with the court. No action is
required by the court. The court is bound by the limitations agreed upon
by the lawyer and the client as set forth in the Notice.
New Rule 55.03(b) states: "An attorney who files a notice of limited
appearance withdraws when the attorney has fulfilled the duties as set
forth in the notice and files a termination of limited appearance with
New Rule 4-1.16(c)
states: "A lawyer must comply with applicable law requiring notice to or
permission of a tribunal when terminating a representation unless the
lawyer has filed a notice of termination of limited appearance.
Except when such notice is filed, a lawyer shall continue representation
when ordered to do so by a tribunal notwithstanding good cause for
terminating the representation." (Underscore added)
It would be beneficial if the termination included the current
name, address and phone of the now self-represented litigant for the
convenience of contact by the court and opposing parties.
about malpractice liability?
Just like full representation, an
attorney is responsible for negligence. The same risk management
practices apply. One such practice is having good communication with the
client. Time spent in the consultation and preparation of the
limited services agreement is well worth the investment.
Other resources about limited representation:
Your Practice", Forrest
S. Mosten, GP|Solo, ABA General Practice, Solo & Small Firm
Division, October-November 2001.
An Analysis Of Rules That Enable
Lawyers To Serve Pro Se Litigants,
A White Paper by the ABA Standing Committee on the Delivery of Legal
Services, November 2009 ABA white paper on unbundled services.
Look at Unbundling Legal Services",
Kathleen Bird, Journal of The Missouri Bar, January-February 2007.
Training sessions on LSR
by Sue Talia (Note: The training is based on California rules.
Viewers should review the Supreme Court of Missouri Rules (Rule
before relying on the presentation. There are four separate videos.)
Appreciation to Lou DeFeo of Jefferson
City for developing this chapter.
Revised May, 2012