| Oregon State Bar Bulletin — JULY 2007 |
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Improving access to justice in the face of decreasing government funding and rising legal costs continues to challenge the legal community. Despite laudable efforts of the access to justice community, the need for affordable legal services far exceeds the availability. As a result, many people are resorting to self-service, addressing their own legal issues without the assistance or advice of an attorney. Worse yet, disheartened by the expense of lawyers, but confused by the legal system, some self-represented parties turn to non-lawyers for assistance, who in turn may do more harm than good for the client.
In response to the gap in affordable legal services, some lawyers have begun to consider offering "unbundled" legal services, known more formally as "discrete task" or "limited scope" representation. The traditional model for providing legal services is as a single-service product, which includes advice, fact investigation, legal research, drafting correspondence and pleadings, negotiation, representation at hearings, formal discovery and trial. Unbundling these services means clients select which legal services they want their lawyers to provide and to what extent.
Discrete task representation is not new in the transactional and corporate legal worlds. In the litigation context, however, providing unbundled services is less common, perhaps because it can be more challenging; certainly it demands clearer and more specific communication with the client. Although limited scope representation has always been allowed under the ethics rules, some lawyers have been hesitant to adopt the practice because of uncertainty and difficulty in negotiating the ethics issues associated with unbundled legal services.
Oregon RPC 1.2(b), which has no counterpart in the former Code of Professional Responsibility, expressly provides that a lawyer may limit the scope of representation as long as "the limitation is reasonable under the circumstances and the client gives informed consent." Despite this express authorization for limited scope representation, other rules of professional conduct seem only to contemplate traditional full-service representation, thereby creating potential land mines for lawyers who make efforts to provide unbundled legal services. Four areas in particular represent continued concern for lawyers embarking on an unbundled law practice: misrepresentation; communicating with represented parties; competence; and communication.
Ghostwriting
Ghostwriting is a practice whereby an attorney
prepares pleadings for a pro se litigant to submit
to court without disclosure of authorship. Lawyers
are understandably reluctant to include their names
on pro se pleadings for fear of being deemed counsel
of record by the court or the opposing party, notwithstanding
their and their clients’ intentions. Ethics opinions
in other jurisdictions are split on the issue of whether
disclosure is required. Those that require disclosure
generally conclude that failure to do so would be misleading
to the court and opposing counsel and would allow the
undisclosed lawyer to avoid responsibility for frivolous
litigation under applicable court rules.1 Others,
including ABA Informal Op. 1414 (1978) (interpreting
the former Model Code of Professional Responsibility),
conclude that misleading the court can be avoided by
disclosing the fact of assistance, but the identity
of the lawyer providing assistance need not be provided.
It is also worthy to note that Oregon RPC 1.2(d), 3.3(b), 4.1(b) and 8.4(a)(3), all of which speak to dishonesty or misrepresentation, apply only to material misrepresentations. The fact of assistance to a pro se litigant is not material to the merits of the litigation. Even so, some authorities have expressed concern because the pleadings of pro se litigants are held to a less stringent standard than pleadings drafted by lawyers. Others, however, have concluded that if the undisclosed lawyer has provided effective assistance, the fact of the assistance will be evident to the court. If not, the pro se litigant will not have secured an unfair advantage. One author explains:
Practically speaking …ghostwriting is obvious from the face of the legal papers, a fact that prompts objections to ghostwriting in the first place.… Thus, where the court sees the higher quality of the pleadings, there is no reason to apply any liberality in construction because liberality is, by definition, only necessary where pleadings are obscure. If the pleading can be clearly understood, but an essential fact or element is missing, neither an attorney-drafted nor a pro se-drafted complaint should survive the motion. A court that refuses to dismiss or enter summary judgment against a non-ghostwritten pro se pleading that lacks essential facts or elements commits reversible error in the same manner as if it refuses to deny such dispositive motions against an attorney-drafted complaint.
Goldschmidt, In Defense of Ghostwriting, 29 Fordham U.L.J. 1145, 1157-58 (2002).
The question of whether undisclosed ghostwriting is misleading may be answered in Oregon by the applicable rules of court. Oregon RPC 3.3(a) prohibits lawyers from failing to disclose to the court information that they are required to reveal, and RPC 3.4(c) prohibits lawyers from knowingly disobeying the rules of a court. UTCR 2.010(7) requires that all documents submitted to the court "include the author’s name…and, if prepared by an attorney, the name and the Bar number of the author and the trial attorney assigned to try the case." Pro se litigants are required to disclose whether they selected and completed documents on their own or with paid assistance. ORCP 17 also requires that all pleadings be signed, thereby certifying to the court that the pleading is not filed for an improper purpose and that the allegations, denials and other factual assertions are supported by evidence. Reading these rules together, it appears that the pro se litigant must sign the pleadings, but the identity of the lawyer-author must also be disclosed, in some fashion, on the pro se pleadings. The local court may indicate a preference for how lawyers-as-document-preparers should include their names on pro se pleadings.
Coaching vs. Scripting
Another valuable unbundled service that lawyers
can provide is consultation and advice on negotiating
a settlement. However, what if the opposing party is
represented by an attorney? Oregon RPC 4.2 prohibits
a lawyer from communicating with a party who the lawyer
knows is represented by another lawyer. RPC 8.4(a)
prohibits a lawyer from violating the ethics rules
through the conduct of another. The purpose of RPC
4.2 is to prevent a lawyer from bypassing the opposing
lawyer to gain an advantage for the client. The rule
does not, however, prohibit a lawyer from allowing
his client to communicate directly with the other party
in the matter, so long as the lawyer does not instruct
his client to convey a particular message. See OSB
Formal Op No 2005-147. While it seems unlikely that
RPC 4.2 would be applied to a situation where a lawyer’s
representation was limited to coaching a client about
negotiation techniques, lawyers may avoid even a risk
of violating this rule by providing only general advice
about the client’s rights and how to negotiate,
not specific instruction on what exactly to say.
Competence
Competence is a prevalent issue in the unbundled
law practice in part because the traditional model
of law practice teaches that the only way to handle
a client’s matter competently is to handle it
completely.2 Recall, however, that Oregon
RPC 1.2(b) allows limited scope representation so long
as "reasonable under the circumstances." Limited
representation may be appropriate because the client
has narrowly defined objectives for the representation.
In addition, the terms upon which representation is
undertaken may exclude specific means that might be
available to accomplish the client’s objectives
because, for example, the client thinks such means
are too costly or the lawyer regards them as repugnant
or imprudent. ABA Model Rule 1.2, Comment [6]. Whether
discrete task representation is reasonable in any situation
depends on whether the lawyer can provide competent
and diligent representation given the limitation. Comment
[7] to ABA Model Rule 1.2 puts it this way:
If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.
Thus competent advice consists of a combination of competent substantive advice in answer to questions asked and the exercise of professional judgment to determine whether a competent answer can be given because of the complexity of the question or situation.
The ABA Comment also indicates that the limited scope of the representation should be considered when determining whether the lawyer has the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Even though a lawyer is handling a matter competently, malpractice exposure may still be a concern. See, e.g., Nichols v. Keller, 19 Cal Rptr 2d 601 (Cal App 1993)(despite the limited contract between lawyer and client on a workers’ compensation claim, the lawyer had a duty to advise the client of the availability of other remedies; failure to alert the client to a possible third party claim, even when representation on such a claim falls outside the scope of the limited representation, may lead to liability). For an overview on avoiding malpractice liability when providing unbundled legal services, see Michaelis, Unbundling, Part II, 59 OSB Bulletin 6 (1999).
Communication
Perhaps the most important concern for lawyers
who provide unbundled legal services is adequate communication.
Oregon RPC 1.4(b) requires a lawyer to explain matters
to a client "to the extent reasonably necessary" such
that the client can make informed decisions about the
case. In addition, lawyers may provide limited scope
representation only with the client’s informed
consent. RPC 1.2(b). Informed consent denotes agreement
by the client after the lawyer has communicated "adequate
information and explanation about the material risks
of and reasonably available alternatives to" the
limited scope representation. RPC 1.0(g).While RPC
1.2(b) does not require that the client’s consent
be confirmed in writing, a prudent lawyer will get
the client’s signature on a written agreement
for representation that clearly details what services
the lawyer will and will not provide, what tasks the
client is expected to perform, and when the lawyer
will cease providing services. Without such an agreement,
questions can (and inevitably will) arise about whether
a lawyer has improperly withdrawn from the representation
or whether a lawyer has neglected a client’s
case.
Conclusion
While not without its complications and ethical risks,
limited scope representation is an important and valuable
service that lawyers can provide, particularly for low
and middle income clients. With care, lawyers should
be able to comfortably navigate the ethical considerations
inherent in discrete task representation. The effort
will result not only in the offering of much needed services,
but also in a source of business that remains largely
untapped.
Endnotes
1 Colorado Op. 101 (1998); Connecticut Op. 98-5 (1998); Delaware Op. 1994-2; Kentucky Op. E-434 (1991); New York Op. 613 (1990).
2 Richard Zorza explores the trappings of and assumptions in the traditional model of law practice in his article Re-Conceptualizing the Relationship Between Legal Ethics and Technological Innovation In Legal Practice: From Threat to Opportunity, 67 Fordham L Rev 2659 (1999).
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for
the Oregon State Bar. She can be reached at (503) 620-0222,
or toll-free in Oregon at (800) 452-8260, ext. 361,
or by e-mail at hhierschbiel@osbar.org.
© 2007 Helen Hierschbiel