limited scope representation...first, limited scope representation is representation of a...
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LIMITED SCOPE REPRESENTATIONUnbundling the Family Law Case
Helen Hierschbiel OSB General CounselOctober 18, 2014
TAB 17A - 1
What Is It?
Full service
vs.
Mini-service
TAB 17A - 2
Unbundled Services• Advising/coaching• Gathering facts about client’s situation• Discovering facts about opposing party• Researching particular issue of law• Drafting documents• Reviewing documents• Negotiating with opposing parties or their
lawyers• Representation in court
TAB 17A - 3
What It Isn’t
• Second class practice• Inherently unethical• Inherently malpractice• Good for every case, every client• A chance to learn a new area of law
TAB 17A - 4
Benefits
• More affordable• Greater access to
justice• Empower clients• Expand practice• Improve perception of
lawyers and legal system
• Preserve diminishing court resources
TAB 17A - 5
Barriers
• Discomfort with lack of control
• Concern for client• Fear of
malpractice/ethics risks
• More work than it’s worth
• Concern that court will require full service
TAB 17A - 6
Ethical Framework
• Lawyer may limit the scope of representation of a client as long as: ▫ the limitation is reasonable under the
circumstances, and ▫ the client gives informed consent.
RPC 1.2(b)TAB 17A - 7
What is Reasonable?• Competent Representation
▫ Requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
• Diligent Representation▫ Lawyer must not neglect a legal matter
entrusted to the lawyer.
RPC 1.1 and 1.3TAB 17A - 8
What is Reasonable?
If a client’s objective is limited to securing general information about the law the client needs in order to handle a common and 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.
ABA Model Rules Comment [7] to MRPC 1.2TAB 17A - 9
TAB 17A - 10
What is Informed Consent?
Agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
RPC 1.0(g)TAB 17A - 11
To Tell……………or…… Not to Tell
TAB 17A - 12
Duty of Candor
▫ Lawyers may not lie to court or third parties
▫ Lawyers may not fail to disclose information when duty to disclose
▫ Lawyers may not assist client with illegal or fraudulent conduct
RPCs 3.3(a)(4),4.1. 8.4(a)(1)
Duty of Confidentiality
▫ Lawyers may not disclose information relating to representation UNLESS
▫ Necessary to comply with other law or court order or as allowed by rules
RPCs 1.6(a), 1.6(b)(5)
TAB 17A - 13
How to Decide?• Is there duty to disclose? If not, would
nondisclosure materially mislead?
• If answer to either question is YES, then you MUST disclose.
• If client says NO, even though you MUST, then do not assist client.
TAB 17A - 14
Duty to Disclose?All documents must include the author’s name, address, telephone number, fax number, if any, and, if prepared by an attorney, the name, email address, and the Bar number of the author and the trial attorney assigned to try the case. Any document not bearing the name and Bar number of an attorney as the author or preparer of the document must bear or be accompanied by a certificate in substantially the form as set out in Form 2.010.7 in the UTCR Appendix of Forms.
UTCR 2.010(7)TAB 17A - 15
Certificate of Document PreparationYou are required to truthfully complete this certificate regarding the document you are filing with the court. Check all boxes and complete all blanks that apply:A. [ ] I selected this document for myself, and I completed it without paid assistance.B. [ ] I paid or will pay money to for assistance in preparing this form/document.(Signature)
Form 2.010.7TAB 17A - 16
Contact with Represented Persons
When a lawyer knows a person is represented on a subject, the lawyer may not communicate directly or indirectly with the person on that subject or any related subject without the prior consent of the person’s lawyer.
RPC 4.2TAB 17A - 17
Scenario 1Larry Lawyer represents Wife in dissolution of marriage proceeding. Husband files responsive pleading which is on Amber Attorney’s pleading paper, but signed by Husband. Larry Lawyer would like to talk with Husband about possible settlement.
May Larry Lawyer communicate with Husband directly, or must he communicate with Amber Attorney?
TAB 17A - 18
Knowledge of Representation
• “Knowledge” defined by RPC 1.0(h)• Actual Knowledge• May be Inferred from Circumstances• In re Schwabe, 242 Or 169 (1965)
TAB 17A - 19
Scenario 2Husband has asked Amber Attorney to assist him with drafting a stipulated agreement settling all issues in his divorce from Wife. Wife is represented by Larry Lawyer.
May Amber Attorney prepare a draft stipulation for Husband to submit directly to Wife?
TAB 17A - 20
Cause Another to Communicate
• OSB Formal Ethics Op No 2005-147 (Although client has right to negotiate directly with adverse party, lawyer may not instruct client to convey a particular message.)
• In re Murray, 287 Or 633 (1979)(Lawyer who caused client to communicate with opposing party in writing violated rule.)
TAB 17A - 21
Avoiding the RPC 4.2 Conundrums: Consent Cures
• Providing limited scope representation? Notify opposing lawyer of boundaries of your representation and get consent to direct communication between parties, notwithstanding your role.
• On the other side of a party receiving limited scope representation? Seek clarification from opposing lawyer about boundaries of his or her representation and get consent to direct communication with opposing party.
TAB 17A - 22
Other Practical Tips• Define and document limited scope• Detail factual premises upon which you
are basing your advice/services• Explain and document risks of unbundled
representation• Outline client responsibilities• Repeatedly remind client of limited scope• Send disengagement letter when your
part is done• Document changes in scope
TAB 17A - 23
Choose Clients Carefully• Does the client have the mental,
emotional, physical capacity to carry out his or her portion of the work?
• What experience does the client have with the legal system?
• What is the distribution of power between the parties?
• Do you communicate well with the client and does the client seem to understand?
• Are the client’s expectations reasonable?TAB 17A - 24
Choose Cases Carefully• Can the representation be broken down into
discreet steps which can be easily divided between lawyer and client?
• Are there any complex legal issues?• Is there a critical deadline looming and will
the client be able to meet that deadline?• If you will appear in court, will the court allow
you to withdraw?• Can you verify the facts? If not, does the
client understand consequences?TAB 17A - 25
Honestly Assess Yourself• Do you have good client control skills?• Are you a good communicator? Teacher?• Do you have sufficient understanding of
the law to be able to identify and avoid the risks inherent in limited scope representation?
• Are you willing to accept the risks—of not being allowed to withdraw, of not having complete control, etc.
TAB 17A - 26
Resources• OSB Fee Agreement Compendium• PLF Practice Aids and Forms• ABA Standing Committee on the Delivery
of Legal Services www.abanet.org/legalservices/delivery/delunbund.html.
TAB 17A - 27
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 1
Oregon State Bar Bulletin August/September 2010
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs By Beverly Michaelis
Providing limited legal services is not a new concept. Transactional lawyers have long served in the role of document reviewer or preparer. So how is unbundling different? It takes the idea one step further by employing a team approach in which the lawyer and client decide who will do what based on the legal services required by the client’s case. The client takes a much more active role in the matter and often assumes responsibility for pro se court filings and appearances. Add the 21st century twist of delivering unbundled services online, and some issues arise.
Ethics Revisited Limited-scope representation is expressly permitted in Oregon so long as “the limitation is reasonable under the circumstances and the client gives informed consent.” Oregon Rule of Professional Conduct 1.2(b). Whether unbundled services are reasonable under the circumstances will require your professional judgment. For a complete discussion of the ethical implications in providing unbundled services, including restrictions on ghostwriting or scripting specific messages for clients engaged in settlement negotiations, see Helen Hierschbiel’s Bar Counsel column, “The Ethics of Unbundling: How to Avoid the Land Mines of “Discrete Task Representation,” OSB Bulletin (July 2007).
To Unbundle or Not to Unbundle The benefits of a team approach to representation make unbundling attractive: more affordable legal services, greater access to justice, empowered clients, new revenue streams for lawyers, greater flexibility in providing legal services and improved public perception of the legal system. But what about the risks? If the client fails to follow through with a crucial step in the case, can you be held accountable? Is the malpractice exposure inherently greater when services are unbundled? There is no bright-line answer, but you can manage the risks and reduce the potential for malpractice by taking a few simple precautions.
Screening Is the Key To serve clients and minimize malpractice exposure, screen clients and cases carefully. Start by evaluating the client:
• Does the client have the mental, emotional and physical capacity to carry out his or her portion of the legal work?
TAB 17B - 1
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 2
• Does the client have the funds to proceed?
• Does the client understand that “uncontested” does not necessarily mean “quick” or “simple?”
• Are the client’s expectations reasonable, given the likely outcome or range of outcomes?
• What is the client’s experience with the legal system? Positive? Negative?
• If the case requires the client to appear in court pro se, is he or she likely to feel overwhelmed?
• What is the relative distribution of power between the parties? Does the other side have a potentially unfair advantage?
• How do you feel about your client? Is he or she someone you can work with easily? Do you have good rapport? Try to gauge whether the client will abide by a limited representation agreement or attempt to draw you back into the case when your portion of the work is complete.
Even when the client is a good candidate for unbundling, the client’s case may not be. Consider:
• Can the representation be broken down into discrete steps that can be easily divided between lawyer and client?
• Is there an absence of complex legal issues? (e.g., no disputes over custody, parenting time or property division in a marital dissolution)
• Have all the parties been identified?
• Is there any reason to believe that the other side will be difficult to locate and serve?
• Is there a critical deadline looming? If legal services are divided and the client is responsible for meeting the deadline, is the client able and likely to follow through on a timely basis?
• Have you had (or will you have) the opportunity to verify the client’s facts? If not, does the client fully understand the consequences of proceeding without your verification?
TAB 17B - 2
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 3
• If the unbundling arrangement will require a limited court appearance on your part, will you be able to withdraw afterward? Note that courts are not bound by limited representation agreements and may not grant permission to withdraw.
Are You Suited to Unbundling? Competence is a basic requirement for providing any legal service, but unbundling comes with some additional challenges. Are you up to the task of training and coaching pro se clients? Can you be sufficiently assertive? Are you willing to ask the right questions and elicit the facts? Can you effectively divide the work to be done? Can you say “no” when appropriate? Do you understand the malpractice risks? Are you prepared to do involuntary pro bono if the court will not permit withdrawal? Asking yourself these questions will help you evaluate whether unbundling is a good match for you.
Avoid the Traps The following are frequent causes of legal malpractice claims and can be of particular concern when delivering unbundled services:
• Failure to define or document the scope of engagement.
• Lack of informed consent. (Some clients will sign anything; it is your responsibility to make sure the client understands the situation.)
• Unrealistic client expectations.
• Poor communication with the client.
• Lack of documentation (e.g., memos to the file, confirming letters or e-mails).
• Undetected conflicts of interest; inadequate or nonexistent conflict systems.
• Failure to ask the right questions or verify the client’s facts, resulting in a missed deadline or missed point of law.
• Dabbling in an unfamiliar area of law.
• Failure to effectively disengage and withdraw as attorney of record.
To minimize scope-of-engagement and informed consent problems, prepare a carefully worded engagement letter outlining what you will and will not do. Adequately disclose how difficult the client’s portion of the work will be, keeping the language of the letter as simple as possible. Consider developing a checklist of tasks and responsibilities that clearly identifies who is responsible for what (and when).
TAB 17B - 3
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 4
If you are helping the client with a summary marital dissolution, define what a summary marital dissolution is or prepare a separate information sheet for the client. The summary dissolution information published by the Oregon State Bar Lawyer Referral Service is an excellent starting point. (From the OSB home page, www.osbar.org, choose Lawyer Referral Service under the Client Services heading, then select the Do It Yourself Legal Info link.)
The final document should be easy to read, making ample use of large fonts, bulleted lists, bold type, all caps, colored fonts and any other formatting device to draw the client’s attention to important provisions. It may be beneficial to have the clients initial key paragraphs in the body of the letter, in addition to signing the agreement on the last page.
In general, avoid having clients sign on the spot. Give them an opportunity to take your engagement letter home, review it thoroughly, and call with any questions. This will protect you against later claims of duress or lack of informed consent.
If the client is not able to follow through with pro se filings or court appearances and you agree to finish the case for the client, require the client to sign a new fee agreement/engagement letter.
Finally, if your unbundled service agreement specifies that your fee is “earned upon receipt” or permits payment of fees via credit card, carefully read OSB Formal Opinion Nos. 2005-151 and 2005-172. (From the OSB home page, www.osbar.org, select Ethics Opinions under the Member Resources heading.)
How to Document Your File Effectively The need to document your file increases exponentially at certain stages of the case — when the client is acting against your recommendation, when client consent must be confirmed or when the client is responsible for the next crucial step in the case.
Documentation is also important at the end of the matter. When your work is concluded, send the client a disengagement letter. Make clear that the representation is over, identify any remaining work to be done, explain the consequences if the client fails to follow through, and inform the client of any impending deadlines. This is also an appropriate time to return original client documents and send a final billing statement, if necessary. Use a file closing checklist and follow the same procedures you would use if the case were not unbundled. If you appeared in court on the client’s behalf and need to withdraw as attorney of record, comply with applicable court and ethics rules.
TAB 17B - 4
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 5
Some clients who seek and accept unbundled services may want you to do more than the agreed-upon amount of work. It may be necessary to send one or more follow-up letters to document that you are no longer the client’s lawyer and your responsibility for the matter has ended.
Resources for Streamlining the Process The process of effectively engaging, disengaging, documenting and screening both cases and clients can seem overwhelming. However, almost all these steps can be streamlined by developing form letters and other tools that can be reused with each new client. The OSB’s Fee Agreement Compendium and the ABA Law Practice Management Section’s Letters for Lawyers are useful resources. The latter can be purchased online at a discount through the Professional Liability Fund at www.osbplf.org. Select ABA Products under the Loss Prevention heading. Sample forms, including engagement, disengagement and nonengagement letters; memos to the file; and a file closing checklist are also available on the PLF website. From the PLF home page, select Practice Aids and Forms under the Loss Prevention heading. The ABA Standing Committee on The Delivery of Legal Services has a must-visit website: www.abanet.org/legalservices/delivery/delunbund.html. While you are there, download Unbundling 101: Expanding Your Practice Using Limited Scope Representation, which includes sample forms and checklists.
The 21st Century Twist: Online Delivery of Unbundled Services Screening Clients Just Got Harder
In a virtual or online practice, clients are unseen. You will need to invest extra effort to build rapport and gauge the likely success of your working relationship via e-mail or online contacts. If you intend to practice virtually, checklists, tip sheets and interview forms crafted around traditional screening criteria will be crucial to your success. Review the resources listed at the end of this article and visit the sites of successful and respected virtual practitioners, such as Stephanie Kimbro, www.kimbrolaw.com.
The Bona Fide Office Rule
Oregon has no “bona fide office rule,” requiring a brick-and-mortar office space to conduct a law practice. If you practice in other states, the rules may be different. At least one jurisdiction (New Jersey) has determined that virtual offices do not meet that state’s bona fide office requirement. See http://new.abanet.org/sitetation/Lists/Posts/Post.aspx?ID=626.
TAB 17B - 5
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 6
With that said, the same considerations discussed above apply to online delivery of legal services. In addition, any virtual law office must address:
• Marketing restrictions.
• Full disclosure of the jurisdictional limits of practice.
• Client confidentiality: Any online portal that permits communication, collaboration or document exchange with clients must be secure.
• Publication of terms and conditions identifying when an attorney-client relationship is formed.
See Helen Hierschbiel, “Internet Marketing: Rules of the Road,” OSB Bulletin (January 2008) for more information regarding online marketing and jurisdictional disclosure.
Online Practice and Lawyer Referral
Would a lawyer practicing virtually be eligible to receive referrals from Oregon’s LRS, absent a physical office? The answer is no. Clients referred by the LRS are specifically told to expect an “in-office” consultation. See also LRS Policies and Procedures E.(3):
No duplicate registrations shall be made outside of the city where the attorney maintains his or her practice unless: a) the attorney maintains a second physical location where attorney-client meetings may take place; or b) the attorney’s office is located within two (2) miles of the border between two locations.
Online Practice and PLF Coverage
Only an Oregon attorney engaged in the private practice of law whose principal office is in Oregon is covered by the PLF Claims Made Plan. ORS 9.080(2). But what if the attorney has no office in which he or she meets with clients? PLF Policy 3.180(C) provides:
If an attorney has no office as defined in subsection (B) above, the attorney’s principal office as defined by ORS 9.080 (2)(a) will be defined as the attorney’s principal residence if the attorney is an active member of the bar association of the state of residence; otherwise, the attorney’s principal office will be deemed to be in Oregon unless the attorney affirmatively demonstrates to the PLF that the attorney does not engage in the private practice of law in Oregon.
PLF Policy 3.180 is available on the PLF website at www.osbplf.org. Select Policies and Forms under the Primary Coverage heading. If you have questions regarding PLF coverage, call Jeff Crawford or Kimi Nam at (503) 639-6911 or (800) 452-1639.
TAB 17B - 6
Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs Page 7
Resources for Online Delivery of Unbundled Services
For additional information regarding virtual office practice, visit the ABA eLawyering Task Force online at www.abanet.org/dch/committee.cfm?com=EP024500. Vendors of online platforms for virtual offices include Virtual Law Office Technology, www.vlotech.com/, and Direct Law, www.directlaw.com/.
Conclusion If you are a brick-and-mortar lawyer, the potential traps of providing unbundled legal services are well known. If you are one of the pioneers providing legal services online, the roadmap is a work in progress. Stay tuned.
TAB 17B - 7
Unbundling Legal Services: Limiting the Scope of Representation Page 1
Oregon State Bar Bulletin July 2011
Unbundling Legal Services: Limiting the Scope of Representation By Amber Hollister
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
TAB 17C - 1
Unbundling Legal Services: Limiting the Scope of Representation Page 2
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
TAB 17C - 2
Unbundling Legal Services: Limiting the Scope of Representation Page 3
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.
TAB 17C - 3
Unbundling Legal Services: Limiting the Scope of Representation Page 4
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.
TAB 17C - 4
TAB 17D - 1
TAB 17D - 2
TAB 17D - 3
TAB 17D - 4
Formal Opinion No. 2011-183
547
FORMAL OPINION NO. 2011-183
Scope of Representation; Limiting the Scope
Facts:
Lawyer A is asked by Client X for assistance in preparing certain pleadings to be filed in court. Client X does not otherwise want Lawyer A‟s assistance in the matter, plans to appear pro se, and does not plan to inform anyone of Lawyer A‟s assistance.
Lawyer B has been asked to represent Client Y on a unique issue that has arisen in connection with complex litigation in which Client Y is represented by another law firm.
Lawyer C has consulted with Client Z about an environmental issue that is complicating Client Z‟s sale of real property. Client Z asks for Lawyer C‟s help with the language of the contract, but intends to conduct all of the negotiations with the other party and the other party‟s counsel by herself.
Question:
1 May Lawyers A, B, and C limit the scope of their representations as requested by the respective clients?
Conclusion:
1. Yes, qualified.
Discussion:
In each example, the prospective client seeks to have the lawyer handle only a specific aspect of the client‟s legal matter. Such limited-scope representation1 is expressly allowed 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.
As the examples herein reflect, a lawyer may limit the scope of his or her representation to taking only certain actions in a matter (e.g., Lawyer A‟s drafting or reviewing pleadings), or to only certain aspects of, or issues in, a matter (e.g., Lawyer B‟s representation on a unique issue in litigation, or Lawyer C‟s advising
1 This is sometimes described as the “unbundling” of legal services, or as discrete task
representation.
TAB 17E - 1
Formal Opinion No. 2011-183
548
in a single issue in a transactional matter). In order to limit the scope of the representation, Oregon RPC 1.2 requires that (1) the limitation must be reasonable under the circumstances, and (2) the client must give informed consent.2
With respect to the requirement that the limitations of the representation be reasonable, comment [7] to ABA Model Rule 1.2 offers the following guidance:
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. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
The second requirement of Oregon RPC 1.2 is the client‟s informed consent to the limited scope representation. Oregon RPC 1.0(g) defines informed consent as:
[T]he agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Obtaining the client‟s informed consent requires the lawyer to explain the risks of a limited-scope representation. Depending on the circumstances, those risks may include that the matter is complex and that the client may have difficulty identifying, appreciating, or addressing critical issues when proceeding without legal counsel.3 One “reasonably available alternative” is to have a lawyer involved
2 A lawyer providing a limited scope of services must be aware of and comply with any
applicable law or procedural requirements. For example, if Lawyer A drafts pleadings for Client X, the pleadings would need to comply with Uniform Trial Court Rule (UTCR) 2.010(7), which requires a Certificate of Document Preparation by which a pro se litigant indicates whether he or she had paid assistance in selecting and completing the pleading.
3 A limited-scope representation does not absolve the lawyer from any of the duties imposed
by the RPCs as to the services undertaken. For example, the lawyer must provide competent representation in the limited area, may not neglect the work undertaken, and must communicate adequately with the client about the work. See, e.g., Oregon RPC 1.1, 1.3, 1.4. Likewise, a lawyer providing limited assistance to a client must take steps to ensure there are no conflicts of interest created by the representation. See, e.g., Oregon RPC 1.7, 1.9.
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in each material aspect of the legal matter. The explanation should also state as fully as reasonably possible what the lawyer will not do, so as to prevent the lawyer and client from developing different expectations regarding the nature and extent of the limited scope representation.
By way of example, Oregon RPC 4.2 generally prohibits a lawyer from communicating with a person if the lawyer has actual knowledge that the person is represented by a lawyer on the subject of the communication.4 Mere knowledge of the limited-scope representation may not be sufficient to invoke an obligation under Oregon RPC 4.2.5 Accordingly, the lawyer providing the limited-scope
4 Oregon RPC 4.2 provides that:
In representing a client or the lawyer‟s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other person; (b) the lawyer is authorized by law or by court order to do so; or (c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person‟s lawyer.
See, e.g., OSB Formal Ethics Op Nos 2005-6 (discussing communicating with a represented party in general), 2005-80; 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). See also Oregon RPC 1.0(h), which provides: “„Knowingly,‟ „known,‟ or „knows‟ denotes actual knowledge of the fact in question.”
5 See, e.g., Colorado RPC 4.2 comment [9A] (“[a] pro se party to whom limited representation
has been provided * * * is considered to be unrepresented for purposes of this Rule unless the lawyer has knowledge to the contrary”); Los Angeles County Bar Association Professional Responsibility and Ethics Committee, Formal Op. No. 502 (1999) (“[s]ince Attorney is not counsel of record for Client in the litigation * * * the opposing attorney is entitled to address Client directly concerning all matters relating to the litigation, including settlement of the matter”); Missouri Supreme Court Rule 4-1.2(e) (“[a]n 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 Rule 4-4.3 except to the extent the lawyer acting within 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”); Washington D.C. Bar Op. 330 (2005) (“Even if the lawyer has reason to know that the pro se litigant is receiving some behind-the-scenes legal help, it would be unduly onerous to place the burden on that lawyer to ascertain the scope and nature of that involvement. In such a situation, opposing counsel
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representation should communicate the limits of Oregon RPC 4.2 with the client. If the client wants the protection of communication only through the lawyer on some or all issues, then the lawyer should be sure to communicate clearly to opposing counsel the scope of the limited representation and the extent to which communications are to be directed through the lawyer.6
In the case of Lawyer A, even if the lawyer‟s participation was announced in compliance with court rules (such as by compliance with UTCR 2.010(7)), Oregon RPC 4.2 would not be implicated because Lawyer A is not counsel of record and the limited assistance in preparing pleadings is not evidence that Lawyer A represents Client X in the matter. 7 In the case of Lawyer C, the lawyer should make clear to Client Z that that the limited-scope representation does not include communication with the opposing counsel.
acts reasonably in proceeding as if the opposing party is not represented, at least until informed otherwise.”).
6 While not required, it may be advisable to clarify the scope of the limited-scope
representation in writing to opposing counsel. Cf. Washington RPC 4.2 comment [11] (providing “[a]n otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing lawyer knows of, or has been provided with, a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation”).
7 See, e.g., Kansas Bar Association Legal Ethics Op. No. 09-01 (2009): “Attorneys who
provided limited representation must include on any pleadings a legend stating „Prepared with Assistance of Counsel.‟” But “[a]n attorney who receives pleadings or documents marked with the legend „Prepared with Assistance of Counsel‟ has no duty to refrain from communicating directly with the pro se party, unless and until the attorney has reasonable notice that the pro se party is actually represented by another lawyer in the matter beyond the limited scope of the preparation of pleadings or documents, or the opposing counsel actually enters an appearance in the matter.” See also State Bar of Nevada Standing Committee on Ethics and Professional Responsibility, Formal Op. No. 34 (2009) (an ostensibly pro se litigant assisted by a “ghost-lawyer” is to consider the pro se litigant “unrepresented” for purposes of the RPCs, which means that the communicating attorney must comply with Rule 4.3 governing communications with unrepresented persons).
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Finally, while the client‟s informed consent to the limited scope representation is not generally required to be in writing,8 an effective written engagement letter minimizes any such risks if it “specifically describe[s] the scope of representation, how the fee is to be computed, how the tasks are to be limited, and what the client is to do.”9 THE ETHICAL OREGON LAWYER §15.16 (Oregon CLE 2006).
Approved by Board of Governors, February 2011.
8 Since Oregon RPC 1.2 does not require a writing, Oregon RPC 1.0 does not require a
recommendation to consult independent counsel. It is worth noting, however, that if the lawyer is providing a limited-scope representation with respect to a contingency matter, such an arrangement would need to be in writing. See ORS 20.340. See also FEE AGREEMENT COMPENDIUM ch 8 (Oregon CLE 2007).
9 In addition, “when a lawyer associates counsel to handle certain aspects of the client‟s
representation, the division of responsibility between the lawyers should also be documented in a written agreement.” See FEE AGREEMENT COMPENDIUM ch 9 (Oregon CLE 2007). See
also Oregon RPC 1.5(d) (discussing when fees may be split between lawyers who are not in the same firm).
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FORMAL OPINION NO. 2005-147
Communicating with Represented Persons:
Direct Communication Between Represented Parties
Facts:
Lawyer A represents Client A, who opposes Client B in litigation.Client B is represented by Lawyer B. Client A wishes to engage insettlement negotiations directly with Client B.
Question:
May Lawyer A allow Client A to negotiate directly with Client Babout the matter while Client B is represented by counsel in the matter?
Conclusion:
Yes, qualified.
Discussion:
Oregon RPC 4.2 provides:
In representing a client or the lawyer’s own interests, a lawyershall not communicate or cause another to communicate on the subjectof the representation with a person the lawyer knows to be representedby a lawyer on that subject unless:
(a) the lawyer has the prior consent of a lawyer representingsuch other person;
(b) the lawyer is authorized by law or by court order to do so;or
(c) a written agreement requires a written notice or demand tobe sent to such other person, in which case a copy of such notice ordemand shall also be sent to such other person’s lawyer.
To fall within the prohibition of the rule, the “communication” orthe direction to communicate must originate with Lawyer A. Lawyer Ahas no duty to prohibit voluntary communications between Client A andClient B. Indeed, Client A and Client B have a right to speak directly toeach other that Lawyer A may not abridge. Cf. OSB Formal Ethics Op No2005-6; ABA Formal Ethics Op No 95-396.
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Nevertheless, even if Client A initiates the communication withClient B, a represented adverse party, Lawyer A must not instruct ClientA to convey a particular message because Oregon RPC 8.4(a) providesthat a lawyer cannot violate the Oregon RPC “through the acts ofanother.” See also OSB Formal Ethics Op No 2005-6; cf. In re Murray,287 Or 633, 639, 601 P2d 780 (1979).
Approved by Board of Governors, August 2005.
COMMENT: For additional information on this general topic and other relatedsubjects, see THE ETHICAL OREGON LAWYER §7.42 (Oregon CLE 2003);RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §99 (2003); and ABAModel Rule 4.2.
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HELEN M. HIERSCHBIEL BIO
Helen M. Hierschbiel is General Counsel of the Oregon State Bar where, among other things, she gives ethics guidance to lawyers and serves as liaison to the Legal Ethics Committee. She started working at the Oregon State Bar in December 2003 in the Client Assistance Office, reviewing and investigating ethics complaints against lawyers. While at the bar, she has written numerous articles and given dozens of presentations regarding lawyers’ ethical obligations. Prior to working for the Oregon State Bar, she worked in private practice in Portland, Oregon and for DNA‐Peoples Legal Services on the Navajo and Hopi Reservations in Arizona. She received her JD from Lewis & Clark Law School in 1991, and is licensed to practice law in Oregon and Arizona (inactive).
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JOSHUA KADISH
Mr. Kadish is a graduate of Stanford Law School (1979). He was law clerk to JusticeHans Linde of the Oregon Supreme Court and has been in private practice since 1980. He is apartner at Wyse Kadish LLP, where he practices family law, mediation, estate planning andbusiness law. He is an adjunct professor at Lewis and Clark Law School and has taughtnegotiation and mediation there for over twenty years. Mr. Kadish’s mediation practices focuseson families in conflict around divorce, will contests, care of elders and closely held businesses. He received the Oregon Mediation Association’s annual award for excellence in 2000, the ADRSection Sidney Lezak award for excellence in the field of dispute resolution in 2011, and a DJCLeadership in the Law award in 2012. He is an Oregon Super Lawyer and Five Star WealthPlanner. He has taught and written extensively about mediation and family law.
F:\1\2Staff\JDK\MISC\Bio JOSHUA KADISH 061812.wpd
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