| Oregon State Bar Bulletin — JULY 2011 |
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Limiting the Scope of Representation
By Amber Hollister
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In today’s environment, unbundling legal services has become a hot topic. Many clients are asking how to do more with less. In response, lawyers are seeking new models for delivering legal services.
“Unbundling” means dividing comprehensive legal representation into a series of discrete tasks, only some of which the client contracts with the lawyer to perform. In other words, unbundling is about limiting the scope of a lawyer’s representation of a client to the areas or projects the client wants most. Offering unbundled legal services may benefit both lawyers and the community-at-large, especially in areas such as family law where parties often represent themselves.1 The Campaign for Equal Justice estimates that despite the tremendous efforts of volunteers and contributors, Legal Aid Services of Oregon still meets less than 20 percent of the legitimate legal needs of Oregon’s poor. Because unbundled legal services are often more affordable, unbundling may also increase access to justice for individuals who need legal advice, but are priced out of the traditional legal market. As an added advantage, unbundling may encourage clients who would normally retain a lawyer to engage the lawyer earlier and more often because the client will only pay for the representation he or she really needs.
Unbundling the Ethics
The good news is unbundling is explicitly condoned by Oregon RPC 1.2(b): “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The Oregon State Bar Legal Ethics Committee recently issued OSB Formal Opinion No. 2011-183, to provide additional guidance on how and when lawyers may limit the scope of their representation.
Often lawyers limit the scope of representation by limiting the tasks the lawyer agrees to perform. For instance, a lawyer may agree to draft a pleading without appearing as counsel of record, or review a contract without engaging in negotiations. Comment [6] to the ABA Model Rule 1.2 explains that “the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”
Another way to limit the scope of representation is to limit the issues on which the lawyer will provide advice. For example, a lawyer might be engaged to provide solely employment advice during a merger or the acquisition of a business. Agreeing to limit the scope of representation is one way to give clients a better understanding about your areas of competence and explain that you will not assist them with unrelated matters. Oregon RPC 1.1 provides that a limitation on the scope of representation under RPC 1.2(c) is one factor to be considered when determining whether a lawyer has the legal knowledge, skill, thoroughness and preparation necessary for the representation.
The Meaning of Reasonable
Of course, the fact that a lawyer is only providing a client with limited assistance does not lower the standards for the representation. Lawyers may only limit their representation in ways that a reasonably prudent and competent lawyer would agree to under the circumstances. RPC 1.0(k). A limit on the scope of representation is unreasonable per se if it prevents the lawyer from complying with the Oregon Rules of Professional Conduct or other law.
Lawyers must still provide competent representation for the services undertaken, may not neglect the work they agree to perform, and must communicate adequately with the client about the representation. See RPC 1.1, 1.3, 1.4. If this is not possible, the limitation is not reasonable. For instance, Comment [7] to ABA Model Rule 1.2 states that a limitation on the scope of representation “would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.” Similarly, a lawyer must perform the same kind of conflicts check prior to taking on a limited representation. See RPC 1.7, 1.9. OSB Formal Opinion No. 2011-183 reminds lawyers that a “limited scope representation does not absolve the lawyer from any of the duties imposed by the RPCs as to the services undertaken.”
Limits on representation must not violate any other law. For instance, a lawyer who undertakes limited representation of a client involved in litigation must comply with any court rules requiring disclosure of the lawyer’s participation. Uniform Trial Court Rule 2.010(7) requires a pro se litigant to file a Certificate of Document Preparation, disclosing whether he or she had paid assistance from a lawyer in selecting or completing a pleading. While the question is unsettled in Oregon, some federal decisions suggest that intensive participation by a lawyer without any appearance would be unprofessional and may violate rules of civil procedure, such as Federal Rule of Civil Procedure 11(b), which requires lawyers to certify that the allegations contained in pleadings are nonfrivolous and supported by evidence. See e.g. Ricotta v. California, 4 F Supp 2d 961 (S.D. Cal. 1998) (finding lawyer’s substantial involvement in litigation, including drafting 75-100 percent of pro se plaintiff’s pleadings was unprofessional conduct where lawyer did not sign pleadings or otherwise appear in court), aff’d, 173 F3d 861 (9th Cir. 1999); but see ABA Formal Op No 07-446 (Undisclosed Legal Assistance to Pro Se Litigants) (suggesting that there is no requirement under the ABA Model Rules that lawyers assisting pro se litigants disclose the nature or extent of their assistance).
Getting Client Sign-off
For a limit on the scope of representation to be valid, the lawyer must obtain the client’s informed consent. See RPC 1.0(g). Although RPC 1.2(c) does not require that informed consent to a limited representation be in writing, a written engagement letter may minimize any risks of confusion about the scope of representation. See Fee Agreement Compendium Form 10-1 (Limited Representation Fee Agreement).
For consent to be informed, the lawyer must also explain the risks of the limited-scope representation and the reasonable alternatives available. One reasonably available alternative, depending on the client’s budget, may be for the client to hire other lawyers for each legal task. Another alternative might be for the client to obtain a lawyer to provide total representation. For the client to understand the risks of proceeding with a limited representation, the lawyer should explain what services he or she will and will not provide, and why additional legal representation may aid the client.
In OSB Formal Opinion No. 2011-183, the committee notes that one potential risk of a limited representation is that such a representation may not afford a client full protection against direct contact by opposing counsel under RPC 4.2. RPC 4.2 generally prohibits a lawyer from communicating with a person the lawyer knows to be represented by the lawyer on the subject of the communication. See e.g., OSB Formal Op Nos 2005-6 (communicating with a represented party in general). RPC 4.2 does not prevent an attorney from contacting a party to discuss a subject on which she is not represented, as long as the attorney complies with RPC 4.3 and RPC 4.4.
If a representation is limited in scope, there may be some question whether a party is indeed represented on the subject at issue. Lawyers should proceed with caution before contacting a client who is represented in any way. See In re Newell, 348 Or 396, 234 P3d 967 (2010) (reprimanding lawyer for communicating in a civil case with a person known to be represented by a criminal defense lawyer on the same subject); and In re Schwabe, 242 Or 169, 408 P2d 922 (1965) (attorney reprimanded for contacting adverse party directly after being told by opposing counsel party was represented, even though adverse party later denied he had an attorney).
In OSB Formal Opinion No. 2011-183, The committee suggests that a lawyer discuss with each client to what extent the client wants the protection of communication only through the lawyer, and to what extent the client wants communication to flow directly to him or her. The committee notes that it may be advisable to communicate the scope of the representation in writing to opposing counsel, to clarify the expectations of the client.
Conclusion
Unbundling legal services may give lawyers the flexibility to serve the needs of their clients in creative ways. By limiting the scope of representation, lawyers can be more responsive to client needs and help serve vulnerable populations. Lawyers trying out this new mode of representation should ensure that the limited representation is reasonable and that they obtain informed consent from clients.
Endnote
1. According to the February 2011 OJD/OSB Task Force Report on Family Law Forms and Services, at least 67 percent and as high as 86 percent of family law matters involve at least one self-represented party; both sides are self-represented in approximately 49 percent of family law filings.
ABOUT THE AUTHOR
Amber Hollister 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. 312, or by email at ahollister@osbar.org.
Ethics opinions are published and updated on the bar’s website here.
An archive of Bar Counsel articles is available here.
© 2011 Amber Hollister