Ltd. Representation

Pro Bono Attorneys Deskbook

Limited Scope Representation a/k/a Unbundled Services.

Why not order à la carte?

One 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.

Limited 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 attention.

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 issued an 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.

Other 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 for self-representation?

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 sample form.

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 feasible.

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.”

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.

What constitutes entry of appearance?

CAUTION: Under 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 limited appearance. 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 limited. Limited 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 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 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 documents?
New 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 "Representing 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 88.09(b)).

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.

Even where 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 self-representation

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 the court."

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.

What 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:

"Unbundle 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.
"A 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 4-1.2, Rule 43.01 and Rule 55.03) before relying on the presentation. There are four separate videos.)

Appreciation to Lou DeFeo of Jefferson City for developing this chapter.
Revised May, 2012