Limited Scope Representation and Pro Bono Practice
Limited Scope Representation and Pro Bono Practice
Many low-income persons with legal problems have the choice of suffering without access to justice or attempting to present their own case to the court. The increasing number of pro se litigants is a growing burden to the courts, which creates confusion for litigants, delay for judges and attorneys, and frustration for all. All would agree that litigants are better prepared and better served with the representation of an attorney. The participation of an attorney makes the justice system run smoother for all. Limited scope representation (LSR), also known as "unbundled legal services," is an efficient way for clients of modest or no means to obtain the services of an attorney. The attorney may provide LSR pro bono or change their normal hourly rate or fee for services performed. A 2009 ABA study found "giving the attorney the ability to define the scope of the engagement (was one of) … the most powerful incentives to encourage greater pro bono activity" (Supporting Justice II, A Report on the Pro Bono Work of America's Lawyers, The ABA Standing Committee on Pro Bono and Public Service, February 2009).
Nutshell Summary of Limited Scope Representation Rules
The new Supreme Court Rules on LSR give the attorney and client more control over the defining of the scope of representation. This allows a more efficient "division of labor" resulting in saved time for the attorney and saved expense for the client. For modest income clients it may make the difference between affording a lawyer's help or going pro se. For pro bono attorneys it may make the difference in finding the time to help a client who cannot afford to pay. LSR provides an à la carte menu of legal services.
With the consent of the client a lawyer may limit the scope of representation. The agreement must be in writing and signed by the client except for pro bono services offered through a non-profit organization, court program, bar association, law school or Legal Services Corporation program. The initial consultation is not included in the requirements of writing. A LSR agreement does not exempt the attorney from the duty to provide competent representation (Rule 4-1.2(c) & (d)).
The opposing attorney may communicate with the LSR client unless the LSR attorney gives written notice to communicate only with the LSR attorney (Rule 4-1.2(e)). Service shall be made on the LSR client unless the LSR attorney serves the opposing counsel and court with notice of limited appearance then service shall be made on the self-represented person, and until the attorney files a termination of limited appearance, the attorney (Rule 43.01(b), effective July 1, 2010).
An attorney who assists an LSR client in the preparation of a pleading or motion, etc., is not required to sign the document (Rule 55.03(a)). If an LSR attorney signs a pleading, etc. or makes a written appearance, the attorney has made a general appearance unless the attorney files a notice of limited appearance (Rule 55.03(b)(3)).
An LSR attorney withdraws when the attorney has "fulfilled the duties set forth in the notice" and has filed a "termination of limited appearance" with the court (Rule 55.03(b)(3)).
What can judicial officers do to encourage attorneys to provide pro bono limited scope representation?
Support for the General Idea
Make positive comments about limited scope representation and how it's great to have attorneys providing people of modest means with access to legal services - you appreciate getting forms you can understand, orders you can enforce, and having attorneys for court appearances. Let it be known that you think it is not only okay, but beneficial for attorneys to provide LSR, and that you appreciate their involvement. Let litigants know that if they are unable to afford (or choose not to have) full representation, limited scope assistance is an option. LSR is a win/win/win (court, litigant and attorney) - it helps everyone, if handled correctly.
Hold a training for other judicial officers about the issue of LSR. Encourage the local bar to conduct training about LSR and participate in the training. Like any other new procedure, there will be a "learning curve" with LSR. Consider an annual training in LSR put on by the local bar in each county so that new forms, procedures and "bugs" can be addressed. Training can also serve as a vehicle to address concerns that arise between bench and bar.
When doing public speaking to lawyers or the public, mention LSR when you discuss pro bono.
Encourage your local Bar Association to set up a limited representation panel and retain a listing of persons who are willing to provide LSR services, especially for low-income clients.
Educate. Make positive suggestions to help counsel improve the quality of the 'package' of services they supply in certain areas.
Make it known that you understand and believe that LSR is helpful to the court.
If the client has agreed to limited representation and counsel has notified the court that representation is limited, you've got to let the attorney out once the scope of the representation is completed (Rule 55.03(b)). This is a contractual matter between the client and the attorney pursuant to Rule 4-1.2. Support attorneys who practice before you by honoring the terms of the limited attorney-client relationship. Everyone benefits by some involvement of attorneys. They are unlikely to provide this service if you do not support their efforts.
If an attorney is appearing on only one issue in a matter, hold a bifurcated hearing so that the attorney isn't either sitting through issues he or she is not authorized to address (and not getting paid for). If the attorney decides that he or she can't keep quiet on these other issues, consider taking a break in the hearing and giving the attorney the opportunity to revise the scope of the representation with his or her client.
Recognize that clients who have consulted with an attorney may not present that attorney's advice fully or even accurately. Trust that it is unlikely that the attorney told them "not to bother with service" or similar misconceptions. If there appear to be consistent problems, consider addressing them as general issues with the local bar.
Resist attempts by opposing counsel to broaden the scope of the representation.
Be open to discussing clarification of the issues with counsel, when necessary, so that opposing counsel will know which issues require contact through counsel and which issues permit contact with the client. 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 Rules 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." Rule 43.01(b), effective July 1, 2010, states, "If an attorney has filed and entry 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."
Forms, Papers and Processes
Review your local rules to modify any rule that may be inconsistent with limited scope of representation rules. Emphasize the notice requirement for an attorney making a limited appearance.
Work out procedures with the court clerk's office to make sure they know how to reflect the representational status of the litigant in their case management system. They are on the front line in dealing with many of the issues surrounding limited scope representation and need to be aware of the issues and familiar with techniques for dealing with them.
Work with the local bar to develop practical solutions when problems arise. For example, if you want to be sure that settlement conferences do not have to be continued so the self-represented litigant can consult with their LSR counsel, let them know that they are responsible for notifying their LSR counsel and making arrangements for them to be available on standby or otherwise as appropriate. It is most effective if you meet periodically with the bar to discuss these issues and work out solutions, which work for both of you. It will reinforce the fact that you are all working together to make the process more effective.
Let the Supreme Court Committee on Access to Family Courts (CAFC) know as issues and problems arise so they can be considered and addressed. E-mail comments and questions to CAFC@courts.mo.gov.
Encourage and participate in meetings of the local bar and legal services providers and other pro bono programs to discuss LSR and suggest they have a working group to develop standards of care, informational materials for litigants, fee agreements and office tools, and develop working relationships, referral systems and protocols.
Award attorneys fees for limited scope services when otherwise appropriate and let attorneys know what forms or information they need to provide to substantiate the claim for fees. This is especially important if the attorney is not appearing at hearings, but is assisting in the preparation of forms, declarations and the like.
Be sensitive to the economic issues. For example, if an attorney is in court for limited scope, even a routine continuance can impose a real hardship by pricing the service outside the client's reach. If counsel is pro bono, delays may discourage his or her volunteering in the future. If there's only money for one appearance, and it is wasted, no net benefit is acquired and the funds that might have been properly applied to a limited appearance are wasted. Likewise, be sensitive to when opposing counsel are delaying or otherwise obstructing for tactical reasons.