Spotlight on pro bono: Limited scope representation - practical and ethical considerations
By John E. Brennock
It is an unfortunate fact that some people are unable to obtain legal representation because of limited financial resources or the inability to qualify for or obtain pro bono representation. Those people likely would benefit from at least some attorney involvement in their matter, but often are forced to proceed pro se, and without legal knowledge and training, struggling to successfully handle their legal problem.
Likewise, attorneys naturally want to engage clients who can pay for all of the services connected with a given legal matter. But when faced with a prospective client of limited financial means, attorneys either are forced to reduce their fees, risk nonpayment from a financially challenged client, or simply turn down the representation.
Limited scope representation1, when done correctly, may provide a workable solution to these problems. And for attorneys who want to offer pro bono representation but cannot commit to full representation because of financial or time constraints, limited scope representation can be utilized to provide at least some pro bono service for indigent prospective clients an attorney might otherwise turn away.
Illinois attorneys may limit the scope of their representation of clients, as expressly provided by the Illinois Rules of Professional Conduct of 2010.2 A properly drafted limited scope representation agreement (hereafter "LSRA") allows an attorney and prospective client to agree that the attorney will provide limited scope representation (hereafter "LSR") by narrowing the terms of representation to specified advocacy, advice, or work product to be provided. When LSR is used in a litigation setting, specific Illinois Supreme Court rules govern the role of the limited scope attorney (hereafter "LSA").3
This article highlights four aspects of LSR and examines some possible ethical matters the practitioner must consider with each.
1. Initial review - is limited scope representation appropriate?
Not every case or matter can be unbundled. Although time consuming, it is prudent to precede any engagement with a prospective client consultation to determine what aspects of the client's legal matter can be unbundled. The initial consultation will help the attorney determine: (a) any conflicts of interest, (b) deadlines for claims, defenses and assertions of rights, (c) the temperament, financial status, and personality of the prospective LSC, and (d) what services, if any, can be unbundled for this prospective LSC (also whether the LSC can reasonably handle matters not covered by the LSRA without an attorney).
The comments to Rule 1.2 specify that any LSR is subject to the requirements of the other rules and applicable Supreme Court Rules. It is therefore necessary that the proposed LSRA:
- does not limit the LSA's ability to provide competent representation (Rule 1.1),
- does not create a conflict of interest with another client (Rule 1.8),
- does not seek to charge an unreasonable fee (Rule 1.5),
- provides for the same level of client confidentiality as a regular engagement (Rule 1.6), and
- provides for the same level of diligence (Rule 1.3) and communication (Rule 1.4) as reasonably necessary to accomplish the limited scope representation activities.
2. Use of appropriate documents to establish limited scope representation
Some bar associations have also provided proposed forms (including those approved by the Illinois Supreme Court to use in litigation) and other resources for LSR. See the links that follow:
There is no supreme court model form for the LSRA. The rules do not require a LSRA to be in writing.4 However, Supreme Court Rule 13 does require that a written LSRA precede an attorney's limited representation participation in any litigation.5
It is a better practice to put any LSRA in writing, even if litigation is not involved. A written LSRA will help the practitioner communicate to the LSC what things the attorney will and will not do in the legal matter, and will protect the LSA from later claims by the LSC that more participation was promised than ultimately performed. In turn, this protects against inaction, which may result in a forfeiture or waiver of the LSC's rights or claims if not timely acted upon.
Because there is no specific approved language for a written LSRA, the attorney should err on the side of disclosure when drafting the LSRA. The practitioner can use the templates provided on the resource links above as a starting point for drafting and customizing the LSRA.
The LSRA should specify in plain English: (a) important dates and deadlines, (b) whether the LSC should attend any particular hearing or event, (c) what events are anticipated, and which matters will be handled by the LSA or the LSC (including drafting and filing written documents), (d) when and how the LSC will pay for services, and (e) when and how the attorney-client relationship may end. The practitioner should carefully format the LSRA, highlighting important information in bold text.
3. Communication in limited scope representation
Some general points on communication:
- Confidentiality – Just as in a regular engagement, the attorney has an ethical duty to keep information obtained from the LSC in confidence and to not share confidential information without the LSC's informed consent.6 When in doubt on what you can share, specify in the written LSRA (and by email during the engagement) (a) with whom the attorney can communicate, (b) what topics or matter the attorney can discuss, and (c) what information the attorney may disclose.
- Counseling pro se litigants - A lawyer may counsel nonlawyers who wish to proceed pro se in litigation7, but a lawyer may not use LSR to assist a non-lawyer in the unauthorized practice of law.8 The LSR should determine who will receive the ultimate benefit from the LSR counseling. If the LSC would not be permitted to represent themselves in court, or if the LSC plans to use the information to represent another in court (where the rules do not permit the LSC as a non-attorney to do so), then such LSR would be improper.
- Court filings – An attorney may be engaged to assist in drafting court documents without also having to appear and participate in court. Changes to Illinois Supreme Court Rule 137 allow an attorney to assist a self-represented person in drafting or reviewing a pleading, motion, or other paper without making a general or limited scope appearance.9 That section of the rule provides that (a) such assistance does not constitute either a general or limited scope appearance by the attorney, (b) the self-represented person signs the court document, not the attorney, and (c) the attorney providing such drafting or reviewing assistance may rely on the self-represented person's representation of facts without further investigation, unless the attorney knows that such representations are false. Three observations on this: (1) the rule does not prohibit the attorney from also signing any such court document, nor does it specify if such a signature would subject the LSA to the requirements under Rule 137 generally, (2) it is unclear what additional scope of representation would subject the LSA to the requirements under Rule 137 - i.e. it is unclear if the exclusion to the applicability of Rule 137 to the assisting attorney still applies if the LSRA also provides for the LSA to appear at one, later court matter, and (3) the rule does not impose an obligation to investigate facts, but it may be prudent to include in the LSRA a warning about misrepresenting facts and the exposure the LSC has under Rule 137 for false information.
- Communication with the Court – Both in court filings and at the beginning of every court appearance, it is appropriate for the attorney to state he or she is appearing under the LSRA. As LSR and the changes to Rule 13 are fairly recent, some judges may not be familiar with the LSR process. The attorney may have to politely educate the court about the LSR, the purpose of the limited appearance, and what procedural steps will have to happen for continued representation.
- Communication to/from opposing counsel/other parties - Generally, a lawyer cannot communicate about a legal matter with a person the lawyer knows to be represented by another lawyer in the matter.10 However, a lawyer is permitted to communicate with a person represented under Rule 1.2(c) outside the subject matter or time frame of the limited scope representation.11 The comments to the Rule specify that the opposing attorney is only deemed to know that the LSC is represented by counsel (and the subject of that representation) upon receipt of (i) a proper Notice of Limited Scope Appearance under Supreme Court Rule 13(c)(6), or (ii) with respect to a matter not involving court proceedings, receipt of written notice advising that the client is being represented by specified counsel with respect to an identified subject matter and time frame.12
To avoid any impropriety, an attorney representing a party adverse to an unrepresented party may want to ask the presumed unrepresented party if they are represented by an attorney. This recommendation is supported by the ABA Standing Committee on Ethics and Professional Responsibility in their Formal Ethics Opinion 472, issued Nov. 30, 201513. The Opinion suggests that, if it is unknown if a party is receiving LSR, the attorney should ask the party if they have a LSA, and if so, the attorney should cease communication with the person, contact the LSA and clarify the scope of the LSRA.
4. Ending (or extending) limited scope representation
Illinois Supreme Court Rule 13(c)(7) specifies the methods an attorney may withdraw or discontinue limited scope representation in litigation.14 Once the representation specified in the filed Notice of Limited Scope Appearance is complete, the LSA may withdraw as follows:
On oral motion at or before a court hearing when the LSC is present: If the representation is completed before a court hearing attended by the LSC, then the LSA may make an oral motion to withdraw without prior required notice. In this instance, the court must then grant the request unless the LSC objects on grounds that representation is not complete.15 Such objection triggers a mandatory evidentiary hearing, which can be held then or at a later date, and after that hearing the court must allow the withdrawal unless it expressly finds the representation specified in the NLSA is not complete.16 In either case, the court can order the LSA to give written notice of the order to non-present parties.17
On written notice: Using the Supreme Court Notice of Withdrawal of Limited Scope Appearance form, the LSA may withdraw from a LSRA by filing the Notice, serving the Notice on the LSC, any other parties18 and the Judge, with proof of service.19 The LSC then has 21 days to file an objection.20 If no objection is filed within 21 days of service of the Notice, the Limited Scope Appearance terminates without need of further court order.21 However, if the LSC timely files an objection on the Limited Scope Appearance form provided by the supreme court, and serves it on the LSA and any other parties required to receive notice, then the LSA must notice the objection for a hearing.22 Again, the court must allow the withdrawal unless it expressly finds the representation specified in the NLSA is not complete.23
If the LSR does not encompass litigation, it is prudent for the LSA to explicitly spell out in a written LSRA when the representation will terminate, and then memorialize the conclusion of representation by email, letter by regular U.S. mail, or by an "end-of-representation" in-person meeting.
Finally, the LSA and LSC may re-engage after the conclusion of the LSRA, or a different LSRA may be entered into to cover different aspects of the representation.24 That said, comments to Rule 13 warn that this practice should not be abused and that the court has the power to manage any abusive practice of using LSRA before it. 25 Therefore, if the practitioner intends to re-engage to represent a LSC in a case the attorney previous participated in under one or more LSRA, it may be more appropriate to simply reach an agreement with the LSC to switch to a traditional, full representation engagement.
If you have not implemented limited scope representation into your practice, you may be missing an opportunity to work with a wide range of prospective clients and grow your business. But as illustrated above, there are a number of practical and ethical considerations the practitioner must be conscious of when undertaking limited scope representation. So if you decide to expand the scope of your practice to include "limited scope representation" but you want to limit your risk of exposure to potential malpractice claims, remember to review and apply the applicable rules before the representation begins.
1. Also sometimes referred to as unbundled legal services.
2. Ill. S. Ct. Rs. Prof. Conduct Rs. 1.2 (c)(eff. Jan. 1, 2010).
3. Ill. S. Ct. R. 13(c)(6) and (7) (eff. July 1, 2013).
4. Ill. S. Ct. Rs. Prof. Conduct Rs. 1.2, Comment 6 (adopted July 1, 2009).
5. Ill. S. Ct. R. 13(c)(6) (eff. July 1, 2013).
13. http://www.americanbar.org/content/dam/aba/administrative/professional_r... inion_472.authcheckdam.pdf
24. See Ill. S. Ct. R. 13(c)(6)(eff. July 1, 2013)("An attorney may file a Notice of Limited Scope Appearance more than once in a case. An attorney must file a new Notice of Limited Scope Appearance before any additional aspect of the proceeding in which the attorney intends to appear. A party shall not be required to pay more than one appearance fee in a case.")