Even before the economy went sour the number of clients appearing pro se was on the rise, as was the number of attorneys seeking clients. Limited scope representation can help both attorneys and clients achieve their goals and also ease the burden on the courts.
Attorneys are regularly reminded that the availability of legal services is tied too tightly to a fee-based model and one side-effect of this is the growing number of self-represented parties navigating the court system. A detailed report issued by the American Bar Association, entitled “Handbook on Limited Scope Legal Assistance,” illustrates this growth. According to the report:
The figures [documenting unrepresented parties], especially in domestic relations cases, are striking. Nationally, in three or four out of every five cases, one of the two parties is unrepresented. In Phoenix, Arizona and Washington, D.C., for example, the figure is nearly 90 percent. In Florida, it is over 80 percent. Nationally, both parties are unrepresented in two or three out of every five cases.1
These figures are from 2001 and more recent numbers from the Administrative Office of the U.S. Courts indicate that in the 12-month period ending September 30, 2007 there were 257,507 total civil cases filed in all United States district courts; of these, 70,240 (27.3%) were pro se cases.2 In the following fiscal year ending September 30, 2008, there were 267,257 cases filed in United States district courts, 70,948 (26.5%) of which were pro se cases.3
Limited Scope Legal Services
An attorney conferring with a self-represented party, even one time over the phone, can bring focus, experience and meaningful information to someone navigating a legal matter alone. However, tradition and the present fee-based model often direct both the lawyer and the client into a relationship involving full representation. This relationship translates into a full-time commitment for the lawyer and a full-price commitment for the client. As people, particularly ones in distressed financial circumstances, show the court system they are unwilling or unable to participate on these terms, the limited-scope legal services model is being discussed as another way to connect those in need of legal services with those who can provide them.
Unbundling legal services (a/k/a limited task, limited scope, discreet task, specific task, attorney á la carte) has been described in a report by the Minnesota State Bar Association (MSBA) Pro Se Implementation Committee as “… a way to provide legal services to persons who cannot afford full representation, who are not willing to pay for full representation, or who are unable to pay anything, but would benefit from discrete task pro bono services.” 4
Have you have ever thought about assisting a self-represented party, pro bono or for pay, yet hesitated to do so? If the answer is yes, you’re not alone. Lawyers surveyed by the Pro Se Implementation Committee cited various reasons why they hesitate to engage in limited scope services: fear of having to stay on a case forever, being unable to withdraw, not knowing how to develop a limited scope retainer agreement and not wanting to prepare individualized agreements, concerns about violating ethics rules, and malpractice concerns.5 These concerns notwithstanding, there are ways to deliver legal services that are task-specific and narrow in scope. Model documents are available as guidelines to help an attorney implement a limited scope legal services arrangement with a self-represented party.
Nothing is implied or stated in this article to release an attorney from the duty to provide competent legal services in compliance with the Rules of Professional Conduct, nor to construe the limited scope relationship as a denial of the creation of an attorney-client relationship when one has in fact been created. Given the potential for misunderstanding between attorney and client in a limited-scope representation arrangement, it’s wise advance planning for an attorney to keep in mind professional conduct rules that may come into play. Among the rules of professional conduct that may be implicated in a limited scope representation are: Rule 1.16, (Declining or Terminating Representation); Rule 1.1, (Competence); Rule 1.02 (Scope of Representation); Rule 1.5 (b) (Fee proportional to the scope of representation) and Rule 1.18 (Duties to Prospective Client).6
Types of Matters
Attorneys accustomed to providing full representation to their clients may be uncertain how to subdivide their services or what types of matters a self-represented party might contract with an attorney in a limited-scope arrangement. A nonexhaustive list of services an attorney might offer to perform under a limited scope agreement could include the following:
1. Appearance. Making an appearance involves an attorney showing up in person on behalf of a self-represented party before a fact finder. Such appearances might include, for example, appearing in a matter before a court of law (e.g., an unlawful detainer hearing or contested post-decree motion in a family law matter), before a governmental body (such as a town board or city council ), an administrative agency (such as for an unemployment benefits hearing), a qualified arbitrator or mediator in private alternative dispute resolution, or other third party where the self-represented party’s interests are involved. An attorney could define the relationship with a self-represented party in writing to provide legal services for a specific appearance only. If a written appearance of record and accompanying documents are involved, the attorney can document to the self-represented party, to opposing parties/counsel, and to the fact finder the existence of the limited scope arrangement. MSBA’s practicelaw.org website includes several documents useful for this purpose under the heading “Practice Management Forms and Materials.” These include a Limited Scope Legal Services Agreement and a Notice of Limited Scope Representation.7 Additional limited scope practice documents are available as well.8
2. Single Event/Transaction or Task. An attorney can also limit the legal services rendered to assist a self-represented party in processing or completing a single event (such as counseling someone refinancing a home loan) or transaction (reviewing an apartment lease). The Limited Scope Retainer carries the caveat, among others, that once the event or transaction is concluded (or if it stalls indefinitely), the attorney may unilaterally withdraw.9
3. Document Drafting. An attorney can also assist a self-represented party in a matter where creating documents is necessary or helpful to the self-represented party’s interests. The Limited Scope Retainer carries the caveat, among others, that documents resulting from the attorney’s efforts under this agreement will not bear the attorney’s signature or appear on the attorney’s letterhead but will instead be signed by the self-represented party and bear his or her contact information. Attorney document-writing services (ghostwriting) can help a self-represented party with pleadings, motion papers, letters, filling out forms, and responsive writings. With documents often being an important element in a legal matter, an attorney’s drafting skills can be helpful. As with all types of limited scope matters, written clarification of the terms of the agreement is particularly important in document drafting because an appearance or further advocacy are often needed following preparation of documents. The attorney should state specifically how much or little will be done for the self-represented party once the documents are completed.
4. Negotiation. Where oral or written presentation of a self-represented party’s interest in a nonlitigation setting is needed, attorneys could provide limited negotiation services necessary to assist with or complete a specific task (for example, press for resolution on a contested matter such as a disputed repair bill, used car sale, or damage deposit refund). The Limited Scope Retainer carries the caveat, among others, that in the event negotiations break down, stall, or become deadlocked, or the attorney in his or her sole judgment determines that a conclusion is unlikely, the attorney may withdraw from the matter.9
5. Advice Only. An attorney can agree to meet with a self-represented party by telephone or other means and limit his or her services to rendering a legal assessment of a matter orally to the self-represented party. Here the Limited Scope Retainer carries the caveat that the attorney will meet once via telephone or other means with the client and no other legal services are to be rendered by the attorney unless agreed by the parties.
Once a limited scope arrangement has been established, the attorney and client can always agree to changes in the scope of legal services to be provided. Following up in writing regarding any such change is wise and the model documents provide a sample change-of-scope letter.10
An attorney’s limited scope involvement in a case where a party seeks to pursue a legal matter pro se has the potential to improve the outcome for all concerned. By helping someone make an assessment based on the law as to claims and defenses, formulating arguments, and focusing on relevant issues that separate emotional or personality-based arguments from the legal ones, the attorney can simultaneously assist one person directly and contribute to the efficiency of the legal system as a whole.
1 See American Bar Association, “Handbook on Limited Scope Legal Assistance,” http://www.abanet.org/litigation/taskforces/modest/report.pdf (last visited 09/01/10). See also National Center for State Courts, “Access to Justice: Meeting the Needs of Self-Represented Litigants, Executive Summary” (2002), http://www.ncsconline.org/WC/Publications/Res_ProSe_AccessJustMeetNeedsExecSumPub.pdf (last visited 09/01/10).
2 Administrative Office of the U.S. Courts, “Civil Pro Se and Non-Pro Se Filings, by District … 2007,” http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2007/tables/S23Sep07.pdf (last visited 09/01/10).
3 Administrative Office of the U.S. Courts, “Civil Pro Se and Non-Pro Se Filings, by District … 2008,”http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2008/tables/S23Sep08.pdf (last visited 09/01/10).
4 Report of the MSBA Pro Se Implementation Committee May 2003 to 2006, http://www2.mnbar.org/committees/pro-se/CommitteeFinalReport.pdf (last visited 09/01/10).
6 See Minnesota Rules of Professional Conduct, http://lprb.mncourts.gov/rules/Documents/MN%20Rules%20of%20Professional%20Conduct.pdf (last visited 09/01/10)
7 See http://www.practicelaw.org/45 (requires MSBA member login)(last visited 09/01/10). See also http://www2.mnbar.org/committees/pro-se/ (last visited 09/01/10), the website of MSBA’s Pro Se Implementation Committee, for a copy of the Limited Scope Legal Services Agreement.
8 See generally Minnesota Family Law Limited Scope Representation Risk Management Materials, at http://www2.mnbar.org/committees/pro-se/ (last visited 09/01/10). Contents include best practice tips, sample intake sheet, sample retainer agreements, sample fee agreements, sample change-of-scope letter, sample follow-up checklist, sample tickler checklist, sample closing letter, and more).
9 See supra note 7.
10 See supra note 7.
11 See supra note 8 for a sample change-of-scope letter (page 43).