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- 1. Limited Scope Representation By M. Sue Talia
- 12. The Risk Management Materials Your Ticket to a Good Night’s Sleep (Courtesy of the California Commission on Access to Justice)
- 19. Q & A
- 21. The End
Notas do Editor
- We are here today to talk about limited scope representation, one of the most exciting developments in the delivery of legal services in the last century. There is a great deal of ground to cover, and many practical handouts to discuss. I’m going to ask you to hold questions until we have finished going through the fee agreements. The program which follows has been taught to hundreds of audiences, and is designed to answer the vast majority of the questions asked. Also, lawyers tend to be lousy about fee agreements and there are some important nuances to limited scope, so I want to be sure that we cover those carefully. So, let’s begin.
- There are several terms for what we will be talking about today: limited scope representation, unbundling, discrete task representation, or other similar terms. I prefer the term limited scope representation because I think it most accurately describes the practice. Since there are many misconceptions about limited scope representation, I find that good place to start is to disabuse you of some of the incorrect things you have been told. First, it isn’t about limited liability. Lawyers are not allowed to limit their liability to clients for the quality of the work they do. The limitation is in scope, not in quality. You will have the same responsibility for the quality of your work in limited scope as you would for the same work in the context of full service representation. If you agree that you will prepare documents for a client to file, those documents must be done competently, consistently with the standard of care in your jurisdiction. The beauty of limited scope is that if you have properly defined the scope (and you’ll be given tools in this presentation to do that simply and safely, you aren’t responsible for anything OUTSIDE the scope. That leads us to the second misconception. Limited scope isn’t the second class practice of law. It is first quality law practice for a limited duration, task or issue. Many people assume, because it is new, it must be unethical. It is not. Many states have adopted ABA Model Rule 6.5, which specifically authorizes an attorney and client to limit the scope of the attorney’s responsibilities. In 2001, limited scope representation was adopted as the official policy of the Board of Governors of the State Bar of California. It had already been approved in Washington, Minnesota, and other states. Since 2005, the trend in favor of limited scope has accelerated across the country as more states remove impediments, real or perceived, to the practice. It isn’t inherently dangerous. There are specific ethical rules about limited scope, which we will be discussing in detail, and they aren’t that difficult. However, they must be followed in each case, and if they are, the practice is safe. Many assume that this is just about poor people, and therefore is limited to a small percentage of the population. However, experience has demonstrated in the past 15 years that a growing number of middle class litigants find themselves unable to afford or unwilling to pay lawyers for traditional full service representation. Recent statistics in California show that between 70% and 80% of family law litigants are self representing. Whatever you believe about the economy, 70% of the population is not poor. Any private practitioner who looks at those statistics and doesn’t see a marketing opportunity, isn’t paying attention. These are people who have houses, pensions, employment benefits, legitimate contract or boundary disputes and other property and rights which are work protecting, and for which they can pay. Finally, it isn’t good for every case, issue or client. You, as the lawyer, must exercise independent judgment as to whether the proposed limitation on scope is appropriate for a given matter. Some cases and legal issues are simply too technical to be delegated to a client, even with superb coaching. The reverse is true, however, and those very complex issues are often susceptible to being broken off and done by the lawyer, which the client is coached to self-represent on simpler aspects of the case. And, of course, not every client is capable of self representation. That being said, it is good for a wide spectrum of cases, legal issues, and litigants.
- So let’s go to what it is. It is the quality practice of law. It is an attorney client relationship. That means you are responsible to the client for what you do in the context of the limitation on scope. This isn’t something you bring into the office and then turn over to your paralegal without supervision. We’ll talk more about that later. The limitation on scope, when carefully drawn and respected, protects you from liability for acts which fall outside the scope. That makes it both ethical and safe, when done correctly. And, similarly, when done correctly, it is a profit center for practitioners.
- The question is not whether limited scope should be allowed by the courts. It is happening across the country as courts struggle with the current demands on the legal system. For a variety of reasons, not limited to the increasing cost of running a law office, many individual litigants are finding themselves unable to afford traditional legal representation. It is beyond the scope of this training to go into the details of the societal changes which are driving this phenomenon, but it particularly hard on those litigants who are unable to write off their legal fees as business deductions. These people have meritorious claims, but if they don’t lend themselves to contingency fee arrangements, they may be uneconomical for lawyers to handle in the traditional way. As a result, litigants have to either walk away from valid claims and causes of action, or try to navigate the courts alone. Increasingly, they are turning to lawyers to help them by coaching, document assistance, or actually appearing of record for the more complicated aspects of the case. This is also being driven by consumer demand. With the advent of the internet and the self help movement, more and more litigants are unwilling to pay lawyers to be the gatekeepers to the courts. As a result, they are demanding that they be given the opportunity to purchase the legal services which they want, rather than being forced to purchase services which they perceive they don’t need and can’t afford. I suggest to you that if we, as lawyers, don’t provide these services, someone less qualified will do so. Finally, in many states, the movement toward limited scope is driven by the courts, burdened by the huge numbers of self-represented litigants, need to provide a process whereby those litigants can present intelligible pleadings and understand the court processes they must adhere to. All of this means the time is ripe for innovation in the practice of law, and limited scope representation is at the forefront of that innovation.
- This program is designed to be clear, practical, and hands on. We will address the ethical and malpractice issues, best practices, and how to incorporate limited scope into your existing practices. Much time and effort has gone into preparing office forms, procedures, fee agreements, client handouts, and other risk management materials, all of which have been vetted and are ready to be taken back to your offices and put to immediate use. You do not have to reinvent the wheel. Practice over the last ten years has demonstrated that most of the problems which arise in limited scope are practical rather than ethical, and we’ll be talking about what they are, and how to resolve them. Finally, since nobody talks to lawyers about how to market their practices, we’ll be talking about how to market your limited scope practice.
- There is no single definition of limited scope representation, no “one size fits all.” Each limited scope attorney client relationship must be tailored to each case, each client, and, to some degree, the court in which it is occurring. It is helpful to think of the various types of limited scope as a continuum: On one end, at the most benign, is advice and counsel. There is nothing new about this: Abe Lincoln did it. A client comes in, presents a legal problem, and receives advice about their legal rights, responsibilities and remedies. They write a check (or swipe a credit card) and go away. The vast middle ground, where most of your limited scope cases will fall, involve something more than mere advice and counsel, but something less than going to court. This is where well over 50% of limited scope cases tend to fall. The client may need help with drafting of documents, research, preparation and organization of exhibits, scripting of questions and testimony, assistance with service of process or other procedural issues, and coaching. At the other extreme of the continuum is a small number of cases where a limited court appearance is required. I estimate these at about 10% of the limited scope cases I see. They may need a lawyer for a single hearing, settlement conference, or issue. These tend to be matters where there is a single difficult or technical issue requiring an attorney’s active involvement, while the rest of the issues are relatively straightforward, and the client can do a creditable job self-representing with document assistance and/or coaching. One of the unique aspects of limited scope is that the definition of the scope is frequently subject to change. That can work both ways: the Tech-savvy person who is used to getting information for free from the internet, insists on self-representation and refuses to pay someone to go to court for them may only initially want document assistance, or procedural advice. After going to court on their own and getting handed a part of their anatomy, they may come back and acknowledge that there is something you learned in law school that is of value to them, and they want to expand the scope of your involvement. On the other end of the spectrum, a client may become more comfortable with the litigation experience as they get more practice, and want more coaching and less hand-holding.
- [There are wide variations in local and state rules of conduct, and these should be checked against any jurisdiction in which this program is being taught.] There are only four basic ethical rules regarding limited scope. When you think about them, not only are they not difficult, they are based in obvious common sense. Rule #1: Limitations in scope must be informed and in writing. It is obvious that the client must know s/he is getting limited scope and not full representation. It isn’t hard to get informed consent, and your materials include a simple, plain language client handout, but this step can’t be overlooked. And why must they be in writing? Some people disagree with me on this one, but I believe there is no such thing as an oral limitation on scope, simply because, in the event of any confusion or misunderstanding about where the limitation on scope ends, any ambiguity will always be resolved in favor of the client. Therefore, any careful lawyer will ensure that the limitation in scope is in plain language and in writing. Rule #2: Limitations must be reasonable under the circumstances. Again, this is obvious with a little thought. Some issues are simply too technical to be adequately handled by a lay person, and some individuals are simply incapable of self-representing. You wouldn’t coach a non-English speaker to go to court without an interpreter. You wouldn’t coach a litigant to defend an SEC proceeding or draft a Qualified Domestic Relations Order under ERISA, which is so technical that most family lawyers refer them to specialists. I suppose there are some clients who are so expert in a specific area that they are qualified, but they are few and far between. The only one I remember from 30 years of practice is when I represented an employee of a national insurance company, whose responsibility it was to ascertain the accuracy and completeness of Qualified Domestic Relations Orders for the entire company. I concluded that he probably was qualified to do that without my assistance. However, these situations are rare. Rule #3: Changes in scope must be documented. This is one of those practical considerations where a lazy attorney is going to get into trouble. As I indicated, scope often changes in these cases, either because the client discovers s/he needs more assistance than originally thought, and presenting your own case to the judge isn’t as easy as making a presentation at work, or because a new issue has popped up. The point of the risk management materials you’ve been given is to draw a bright line box around the scope of your responsibility, to stay within that box, to ensure that you aren’t responsible for anything that might go wrong outside the box. If you change the scope, and don’t re-draw the box, you are asking for ambiguity and potential liability for something you didn’t anticipate. This isn’t something to be afraid of, but it is a reason to use the forms which I’ve provided to re-draw the limitation on scope before undertaking other services. Rule #4: Clients must be advised on related issues, even if they don’t ask. Even if they resist discussing them. This rule comes out of the only California malpractice case on limited scope, Nichols v. Keller (1993) 15 CA 4 th 1672, 19 CR 2d 601. When I started teaching this in the mid-1990’s, people would often wave the flag of Nichols v. Keller as proof that limited scope representation was by definition unethical and would result in a malpractice judgment. Of course, none of those people had actually read Nicholls v. Keller. Although I don’t refer much to cases, I find it helpful to discuss Nichols v Keller, because it helps understand the rule and, more specifically, illustrates why this is such a no-brainer. Mr. Keller was a Worker’s compensation attorney. It said, on the door to his office “Practice Limited to Worker’s Compensation,” a classic limited scope situation. He did not hold himself out as competent to do anything other than worker’s comp. Mr. Nichols was involved in an accident in the course of his work. He hired Mr. Keller to represent him in obtaining his worker’s comp benefits, which Mr. Keller did quite competently. So, here’s the problem. Although he did a good job on the worker’s comp claim, which he was retained to do, Mr. Keller didn’t advise Mr. Nichols that he had a potential third party claim against the driver of the other vehicle. You know what happened next: the statute of limitations ran, and Mr. Nichols sued Mr. Keller for not advising him of his right to sue the other driver. Mr. Keller’s defense was predictable: “I did exactly what I was hired to do, I never represented that I was qualified to do personal injury, and in fact, I’m not qualified, and the limitation on my services and qualifications is painted on my office door. The court of appeal effectively said, “Yes, that’s true. However, as between lawyer client, the lawyer is in a better position to know of the existence of a related claim. You don’t have to represent the client on the related claim, but you have to tell them it exists so that they can find someone who is competent to help them.” Therefore, the duty is to advise the client of the existence of a potential claim. You may not know the specifics, but if you suspect a claim is related, you have an affirmative duty to tell the client of its existence, and give the client the option to pursue it or not. And, for obvious reasons, the better practice is to put this in writing. Again, it isn’t difficult, and is simply common sense. Those are the basic rules. There are nuances, but these four rules are absolute and, in my opinion, there are no exceptions. They aren’t difficult, and the materials include easy and cost-effective ways to meet every one of these rules, and protect yourself and your client in the process.
- Limitations on scope fall into two major categories: the parts of the case may be apportioned between you and the client based on task or issue. Task is obvious: document assistance, coaching, preparation of exhibits, and the like. This will be the vast majority of limited scope arrangements. Occasionally, there is a specific issue which is so complex or technical, that an attorney’s assistance is required whenever it comes up. A classic example is the Custody Case from Hell, where the client needs help getting the supervised visitation or drug testing order, but the rest of the property and support issues are relatively straightforward. In that case, you may be called upon to attend a specific hearing, do discovery, or handle other groups of tasks related to that issue.
- Like full service clients, limited scope clients come in all shapes and sizes. The Poster Child is someone who is organized, businesslike, used to collecting and processing information, making decisions, and taking responsibility for them. They are willing to treat their legal matter like a business transaction (even though we know it isn’t) and can emotionally distance themselves sufficiently to effectively contribute to their representation. Think of the Techie from Silicon Valley, who is used to gathering information, organizing and presenting it. They probably are comfortable doing their own research. They also probably have stock options or other technical issues which require professional assistance. At the other end of the spectrum is the Unbundled Client From Hell. This person is angry, vindictive, has highly unrealistic expectations of what the courts can do for them, and don’t listen when you tell them the relief they want us unavailable. They had 5 or 6 lawyers already, and each one was worse than the one before. Now they’ve heard about this new thing called Limited Scope Representation, and have seen the light. They wouldn’t be in the pickle they’re in now, if they had just started out representing themselves with some document assistance or coaching. They want you to be their coach. Do NOT unbundle with this client. (In fact, this is a dangerous client in any full service situation, as well, but that’s a different topic). This is a totally unsuitable client for limited scope representation, they will never get what they want, and are just looking for someone else to blame. Do not add yourself to that list. In the middle are the vast majority of limited scope clients. They need help understanding their legal rights and remedies, need help with court procedures which seem counterintuitive and arbitrary to them. They can’t tell their story in a coherent way, and need someone to write it for them. They may come in with fifteen pages of venom about the other side which they want to get before the court, and will need to be told what is relevant and what is not. Interestingly, these turn out to be the happiest clients you’ll have. Because they have tried to do it themselves, they have a greater appreciation of what you do. If it took them 20 hours to draft the document, and they still couldn’t get it right, they are less likely to complain about the fact that you charged an hour and 20 minutes to do it correctly. They know the value of what you do, and don’t feel that unnecessary work is being done just so you can charge by the hour and pad your bill. Interestingly, there is often a disconnect between lawyers and clients about what is being bought and sold. We think that we are selling them hours, but they think they are buying results. As a consequence, there is often an inherent suspicion about fees charged by the hour. However, in limited scope, there is a connection between what you are doing and what they are paying for, and an increased respect for the fact that you bring something to the case that they need and can’t provide for themselves. While we are talking about client selection, it is important to address how to talk to clients about limited scope. Remember, Rule #1 is that limitations on scope must be informed and in writing. You should have a handout describing limited scope in laymen’s terms. A sample is in your materials. I think it is a good idea to have it made into a brochure (it isn’t expensive to do) and have a display in your waiting room. Your intake interview for a limited scope client is likely to be longer than the interview for a full service client. The reason is obvious: You have to do a complete diagnostic of the problem to be sure a) it is appropriate for limited scope, b) you have identified and pointed out related issues they may not be aware of, and c) you have to discuss the options for limited scope to obtain informed consent. The first two are required in every case, but the discussion about limitations on scope and where the bright line box is going to be drawn is unavoidable. Fortunately, there are forms in your materials which make this discussion, and the resulting documentation of the file, easy and effective. So, how do you talk to a client about limitations on scope? You may start with the economics. Now that you’ve identified the issues presented by the client, you may ask “How can we spend your litigation budget most effectively?” That concentrates you on the most difficult or technical aspects, and you can then talk about options for document assistance or coaching on simpler aspects. It is important to present the limitation on scope as a consumer decision, for that is what it is. You may say to the client “I can’t teach you everything I’ve learned in X years of practice in a few hours, but I can tell you where the issues are most likely to fall.” Similarly, if the client wants to be coached but to go to court on his/her own, you should, at some point, address the fact that they may be confronted with issues and rules that are unanticipated, but that is the trade-off they are making for not paying for full service representation. This discussion should be matter of fact, direct, and should present the client with a clear description of what you are going to do for them, and, even more importantly, what you are not doing. The fact is that there are inherent trade-offs in any consumer choice, and that is what they are making.
- In some instances, your limited scope arrangement may require you to go to court. This typically occurs when you are handling a specific issue, or the client needs someone to appear and speak for them. Incidentally, don’t get caught up in the special/general appearance conundrum. I’ve heard attorneys say to the court “I’m making a special appearance on custody.” It isn’t. Special appearances are only available to contest jurisdiction, and for no other purpose. What you are doing is making a general appearance for a limited purpose. That’s an entirely different thing. That’s why you have to be sure your jurisdiction (and more specifically, your judge) is familiar with the concept and allows it in his/her court. Frankly, since the courts benefit so greatly from having well-coached litigants, well-drafted pleadings, and compliance with procedures, in many states the drive toward popularizing and expanding limited scope representation is coming straight from the courts themselves. That being said, let’s talk about the Unbundled Lawyer’s Greatest Fear: Making a limited scope appearance before a judge who won’t respect the limitation on scope and either expands it unilaterally or won’t let you out. I’d like to be able to say that this never happens, but that would be a lie. A judge’s job is always easier if there is an Officer of the Court to whom they can give instructions, and who acts as a buffer between the court and the litigant. A lazy judge may well be tempted to expand the scope for that reason. That’s why you need to be sure you have the support of the bench before making a limited scope court appearance. If your state has court forms, there may be a form which puts the court and the opposing party on notice of the limitation on scope. California has MC-950 and FL-950 which are mandatory forms used for just that purpose. If you don’t have forms, you may want to craft one yourself, and at the very least, announce your limitation when the case is called. Well trained judges will be glad to have an attorney for the most difficult aspects of the case, and will respect your limitation. Getting into a case is as simple as filing a pleading with your name on it. I suggest treating it as an association, with the client’s name and contact information first, and yours second, as if you were associated in as counsel for a specific portion of the case. If you are going to appear in court for any part of your representation, it is important that you have a conversation with your client about relieving you from the case. You can’t have the client sign a substitution of attorney in blank in advance, but you can have one in your briefcase for them to sign at the conclusion of the hearing you were retained to attend. Sometimes the judge will instruct you to stay in long enough to draft an Order After Hearing, but you can file the substitution thereafter. There’s a practical issue which sometimes comes up after making a court appearance. Some attorneys tell me that they have difficulty getting the client to sign a substitution of attorneys to release them from the case after they have completed their agreed tasks. I think this is more often a communication problem rather than a deliberate attempt by the client to keep the lawyer on the hook for tasks outside the scope. The fact is that, once the case is over, the client doesn’t want to hear from you. They don’t want to see your return address on an envelope. They may even assume that any mail from you is either a bill or something they are going to be charged for, and may not respond. If you are going to go of record, you should tell the client in advance that you will be sending him/her a document to sign to terminate your involvement. Assure them that they won’t be charged for it, and get their promise to sign and return it immediately. It is a good idea to phrase it in the context of their self interest, as in the document is important to be filed with the court so that they get direct notice of any other filings, rather than having such notices sent to them, which might slow down the process. Impress on them how important it is that they follow through on this commitment and you shouldn’t have a problem. Judges can be more of a problem. When this was starting in Contra Costa County California in the mid-1990s, the Family Law Section Board of Directors had a meeting with the family law Bench to discuss the issues raised by limited scope. At that time, the huge volume of self-represented litigants were a real problem for the courts. The issue was presented in terms of the benefits to the courts of having well drafted pleadings on which to rely, and of having a lawyer in court for the more challenging or technical aspects of a case. The Bar talked about the importance of respecting the limitations on scope negotiated between the attorney and client, including the fact that lawyers wouldn’t be willing to do it if they couldn’t be assured the judge would let them out of the case at the conclusion of their agreed role. They obtained buy-in from the bench, and there were few problems thereafter. This is becoming less of an issue, since in recent years, the courts are often the moving force behind limited scope representation.
- The Risk Management Materials have been designed to provide all the tools you will need to do limited scope competently and safely. Every effort has been made to anticipate potential problems and create a solution. The idea is, of course, to prevent problems from occurring in the first place, rather than trying to fix them after the fact. Frankly, if you use the Risk Management Materials as instructed, you’ll have to work really hard to mess this up. That being said, let’s review what you need to do to keep out of Malpractice Territory: Remember the four No-Brainers: Limitations in scope must be informed and in writing, they must be reasonable under the circumstances, changes in scope must be documented, and you must advise the client of the existence of related issues, even if not asked. Document your file: There are practical differences between limited scope and full service cases. Since you will be doing some things and the client will be doing others, with our without supervision and coaching from you, it becomes even more critical than ever to document your file. One practical problem which the Risk Management Materials has solved is this documentation issue. Of course, it isn’t cost effective if, every time you meet with your limited scope client, you spend the next 40 minutes (unpaid) dictating a CYA (Cover Your Anatomy) letter to paper your file. (Besides, clients hate these – they know why we are doing it and they supremely resent it). The answer is: Checklists. The checklists in your Risk Management Materials multi-task: they remind you to do a thorough intake, memorialize the options for limited scope which you and the client discussed (thus further documenting informed consent), provide a quick refresher for you when the client calls with a follow up question, and, most importantly, are done while the client is sitting in your office and paying you for your time. The importance of checklists was brought home by one of the few malpractice actions involving limited scope. It bears repeating the facts of the case by way of illustration. In an Oregon bankruptcy case, a creditor consulted with a bankruptcy attorney. The credit later failed to attend the first meeting of creditors, and, by law, his claim was barred. He sued the attorney, claiming he hadn’t been told the consequences of failing to attend the meeting. The carrier who insured him ended up paying the claim, although they were convinced that the client was lying, since it is so fundamental to bankruptcy practice to advise creditors of the consequences of missing the first meeting of creditors, that they felt it was inconceivable that the attorney hadn’t told the client. The problem was that the attorney failed to document his file. The Director of Loss Prevention for that insurance carrier said she could have successfully defended that claim if the attorney had had anything, anything at all, which documented the advice given – a memo to file, handwritten notes, or a letter. Your Initial Interview Checklist in the Risk Management Materials is a direct response to this case. If you fill out the checklists as you are having the conversation with the client and, even better, each initial it and give the client a copy, nobody can say you didn’t advise them. And the client has a good reminder so you will get fewer follow up calls asking you to repeat what you told them. As with any aspect of limited scope representation, there is no substitute for your professional judgment. You can’t delegate the intake to your staff, can’t delegate the decision whether this client with this issue before this judge is a good candidate for limited scope. You must always use good professional judgment in applying the Four No-Brainers. Similarly, since you are taking such care to draw a bright line box around the scope of your involvement (and hence, your liability), you should never undertake any tasks outside the box until you have a new written limited scope agreement with your client. As with checklists, the Risk Management Materials make it easy to do a new form quickly and cost effectively. This is particularly important, since new issues have a tendency to pop up on short term notice. The biggest problem facing limited scope lawyers, and the one they are most likely to run afoul of, is taking on a new issue or task outside the initial limitation on scope without getting a new agreement. DON’T do this. Once you’ve stepped outside the limitation of your scope, you have made yourself a full service lawyer, worse, a full service lawyer without a written fee agreement Finally, the Risk Management Materials should be tailored to your practice and used religiously. They are designed to be simple, cost effective, and practical.
- [The Risk Management Materials as presented reflect California law. They should be tailored to the law in the jurisdiction in which this is being taught.] The Risk Management Materials, available in both Family Law and General Civil formats, were developed over several years, and designed to address the ethical, practical, and malpractice issues of limited scope. They were approved by the California Commission on Access to Justice and are available at the Judicial Council Website, [insert url]. They include checklists, client handouts, 4 sample fee agreements, office forms, and are designed to be turn-key. If you are not willing to use them or something like them, then you probably shouldn’t be doing this work. I’m not a fan of program presenters who simply read the materials you have been given. You can all do that on your own time. The materials are rich, practical, and voluminous. Rather, I’m going to be going through the materials, pointing out key parts, describing how they can most effectively be used, and leave you to tailor them to your specific needs. Limited Scope Description: this is a simple, one-page description of limited scope designed to educate the client. It can be put in the form of a brochure, or some other format. The point is to have a simple vernacular document you can give to the client (and note for your file that you did so) to document the fact that the client gave informed consent. Best Practices: these are self explanatory. Initial Interview Checklist: tailor this to your practice. It is designed to cover many functions: it is a reminder to do a thorough intake, to advise of related issues, even if not asked. It papers your file in a cost-effective way (remember, the client is paying for your time in filling this out). It is a client education tool. It memorializes what you talked about. It memorializes your discussion about coaching options, and also what written materials you gave the client. You and the client should each initial it, and you should give the client a copy/ Tasks/Issues to be apportioned: this is the gold standard of how to draw the bright line box around your limitation on scope. It should be used as part of a thorough intake. It should be initialed and a copy given to the client. It can be attached to a fee agreement, and is easily updated if the scope changes. Remember, any changes in scope (and they happen all the time) must be documented. These forms make that easy and cost-effective. Sample fee agreements: Requirements for fee agreements vary wildly from state to state. Even if your state doesn’t require written fee agreements in all cases, ALL limited scope arrangements should be in writing. If there are any misunderstandings or any ambiguity in where the bright line limitation on your scope, they will be resolved in favor of the client, so it is just common sense practice to have those limitations in writing. #1: this is a very simple, one-shot agreement for a service which is performed on the spot, and no further services are contemplated (such as drafting an order after hearing or a wage assignment). It is analogous to a “non-engagement” letter in civil practice. #2. This agreement contemplates ongoing coaching or consulting, but no court appearances. It is a classic coaching agreement. Note the statements of client responsibilities, the simple yes/no format for what is in the scope and paragraph 3, limitation on Attorney’s responsibilities, which should always be included in a limited scope fee agreement. #3. This agreement contemplates a very active coaching/ghostwriting involvement with the client over a period of time, but short of a court appearance. Note Paragraph 4, which is essential. #4. This agreement should be used when ongoing involvement with the court is contemplated. Note that it is NOT effective without an attachment defining the scope (the other agreements have the scope definition in the body of the agreement). Paragraphs 3 and 4 are essential. Sample Change in Scope Letter: This is a form for convenience only. It is NOT a substitute for a new fee agreement if scope changes because it is not signed by the client. It is a transmittal for a new fee agreement. You should NEVER step outside the box of your limitation on scope until you have a new, SIGNED definition of the new limitation on scope. Checklists are the key to the risk management. They are quick, cheap, effective, and memorialize the scope of your responsibility. The follow up checklist should be completed at each stage of an ongoing limited scope arrangement to memorialize who is going to do what, and paper your file. It is completed while the client is sitting with you and paying for your time. Like the other checklists, it is initialed by you and the client, and the client is given a copy. This is gold from a malpractice standpoint. The tickler checklist is a reminder to document any changes in scope, any materials given to the client and, most importantly, the END of the limited scope arrangement. These should never be left open-ended. Sample closing letter. This signals and documents the end of your responsibilities, and puts the client on notice of other events which may be on calendar, such as hearings or discovery which they are taking responsibility for. All of these materials should be tailored to the jurisdiction in which you practice, and your area of law. They are available in both family law and civil formats at the CA Judicial Council website http://www.courtinfo.ca.gov on your list of web resources in your course materials.
- Client handouts serve a multitude of purposes. First, they educate the client, and ensure that you have informed consent to your limitation on scope. However, that isn’t enough. Clients, all clients, but especially limited scope clients, love handouts they can take with them. The most effective are: MapQuest directions to the court, self help center, law library, family court services, or other places where they will need to go or where they can find resources (especially free ones). Handouts describing common issues, such as methods of dividing furniture, severing joint tenancies, definitions of co-parenting, and the like. They should be general in nature, written in clear layman’s language, and you should ALWAYS not in your file which handouts you gave them. Finally, any lawyer who has had a client come in with a totally bizarre theory of the law and asks where on earth they got such an idea, only to hear “I found it on the Internet” should have a list of common sense websites relevant to your practice. For example, in the world of divorce, any lunatic can post anything on the web describing their usually horrific (and often self-created) experience of the courts and legal process. If you want your clients to get a common sense alternative, take the time to investigate the good websites, and give them a handout. At best, they will be more realistic and better educated when they return. At the least, there will be some good information to counteract all the lunacy. The best is divorceinfo.com. Other good ones are uptoparents.org, parentsareforever.org, etc.
- Documenting changes in scope is the number One problem area of limited scope representation. It isn’t hard to do, but there’s a tendency to do the new task first and change the fee agreement later. That is asking for trouble. It requires discipline, but it is absolutely essential to do the new fee agreement before stepping outside of the original limitation on scope. This comes up all the time. In Family Law, there are always new issues popping up. You sign on to coach someone on a modification of child support, and, the next thing you know, you are defending a move-away. When this happens, be sure to get a new checklist. The easiest way is to use the Tasks/Issues checklist from the risk management materials, have the client sign and date the new one, and attach it to your fee agreement.
- Most of the issues which come up are practical rather than ethical. Opposing Counsel: Sometimes you are the full service lawyer on the other side from an unbundled lawyer. If so, and the lawyer is appearing (as opposed to just coaching), you should get a clear instruction from them (preferably in writing) about which issues/tasks you are to deal directly with the litigant on, and which ones you should address through counsel. More often, the problem is on the other side of the case. You are the limited scope lawyer who has appeared in the case. You have notified the other side to deal directly with your client on certain issues, and opposing counsel refuses, insisting on running everything through you. Sometimes it is out of ignorance, and a fear of being reprimanded for dealing directly with a represented party. This can easily be remedied by sending them a letter detailing the scope of your representation and giving them permission to directly deal with your client on all other issues. If you are in California, refer them to Rule 2-100 of the Rules of Professional Conduct, or other similar rule in effect in your jurisdiction which says that attorneys may deal with represented parties with the representing attorney’s permission. [Practice Pointer: DON”T send them your limited scope fee agreement or tasks/issues checklist – they are confidential documents and releasing them will be a breach of attorney/client privilege.] Sometimes, they are just being jerks, and refuse to deal with the client because they want to run your fees up and force the client to settle. If you are in California, threaten them with sanctions under FC 271. Make an application for fees for their refusal to honor the scope of the limitation. A sympathetic judge will cut this short. Courts: This is a matter of judicial education. Many states are doing judicial education of trial judges to point out the advantages to the courts of getting help for self-represented litigants. If your judge is unfamiliar with limited scope, you can gently educate him/her. If you are appearing for a single issue, ask the judge to hear your issue first so you can be excused while the client handles the rest of the matter him/herself. Filing Pleadings: This is a tricky issue. Some states require ghostwriters to be disclosed on the face of pleadings they have assisted with. Check your local rules. California doesn’t require disclosure unless you are asking for a fee award based on the services you have rendered. If at all possible, keep your name off pleadings. There are several good reasons for this; Clients LOVE to fill their pleadings with irrelevant venom which hurts their case. One of the best limited scope services you can perform is to edit their writing to what is legally relevant and persuasive. If your name is going to appear on the pleading, make sure you file it yourself, to prevent some of that drivel from being inserted between your office and the courthouse. If your name isn’t on the pleading, it is probably safe to let your client file it. Be careful, also, of putting your name on pleadings in such a way that you automatically become attorney of record for all purposes, in spite of the limited scope fee agreement you have with your client. New Issues: I’ve already addressed this. There are checklists in the Risk Management Materials which make it easy and cost effective to document changes in scope as a result of new issues arising. Resisting Changes in Scope: Lawyers want to help our clients. When a new issue arises, it often does so in the context of an emergency requiring quick response. The tendency is to do the work required and address the new agreement later. Resist this tendency. There were practical problems in the old days to get documents signed when people had do either wait for a document in the mail or drive to your office to sign it. With faxes and emails today, there is no excuse for not getting a signed checklist before stepping outside the box. Revolving door opponent: This is a corollary to the first issue. Sometimes litigants (and their lawyers) will use limited scope as a weapon: the client is represented one day when it suits his purposes, and self-representing the next, with the same attorney substituting in and out repeatedly. This requires you to do double duty, always bring the attorney up to speed when s/he comes back into the case, running up your fees (which is generally the intent). Handle it the same way, asking for fees awards or sanctions against the attorney, if available. Of course, litigants have an absolute right to be represented by whom they want when they want it. However, if they are abusing the system for tactical advantage and increasing your client’s fees, bring it to the judge’s attention so at least there is a chance for getting the abuser to pay some of the unreasonably increased cost. Service of Process: If you are in a case for limited scope, and of record for part of it, what happens when you are served with a motion which is about a part of the case that the client is handling? I take a pretty conservative approach on this one. I assume that service is good. This is the time to sit down with your client, reaffirm that the requested relief is to be handled by him and not you, and confirm that. You may want to notify opposing counsel in writing, offering permission to deal directly with the client. However, it isn’t the job of the court or opposing counsel or party to divine where you and your client have drawn the bright line around your responsibility for the case. That is your and your client’s job.
- After a while, this will all be familiar and comfortable. However, as you are learning how to use limited scope for you and your clients, it helps to have someone to bounce ideas off of. It bears repeating that most problems are practical rather than ethical. That means that someone else has had your problem come up and likely has some suggestions on how to handle it. It is particularly helpful to set up an informal support group with others who offer limited scope, preferably at various levels of experience. These may meet regularly in person, by email, or listserves. Selfhelpsupport.org has a limited scope listserve which can be used, or set up your own. The point is to share ideas with others and not to reinvent the wheel every time something new comes up.
- Nobody ever tells lawyers how to market their practice. The few materials and workshops out there tend to focus on big firm marketing, and offer little support for the small firm or solo practitioner who wants to promote his or her practice. Here are some suggestions: Make up a professional brochure. This doesn’t have to be expensive, and can easily be done on your own computer. Use quality brochure stock. A good source is paperdirect.com, which has a huge inventory of predesigned business cards, brochures, and related papers in stock. Have a stack of your brochures on display in your waiting room. Always carry some with you when you are interacting with the public. Use a website. It is much less expensive and more flexible than yellow pages advertising. In fact, unless your target client base is most likely to use yellow pages (many immigrant populations are best reached this way), a more effective way to advertise is with a small yellow pages ad which references your website. Use a professional website template. There are many predesigned templates out there which are designed for lawyers and which are easy to modify and expand. Do keep it current. Put information of a general nature which is relevant to your area of practice on your website. Consider a Frequently Asked Questions (FAQ) page which explains what limited scope representation is and why it is advantageous to clients. Put your expertise on the website in a reader-friendly format (not a formal and potentially intimidating curriculum vitae – which most people won’t know the meaning of anyway). If you have special hobbies, reference them. You may love breeding golden retrievers, and some looking up dogs who happens to have a legal problem you can help with may well find you on Google. Be careful how much personal information you put out there. You need to balance the need for clients to see you as a real person they can talk to and the need of your family for privacy. Always volunteer to be a public speaker when you can. Put together a 45 minute presentation of general interest related to your practice area, and offer to speak at service organizations, library nights, and any other similar event. Always have a stack of your brochures and business cards to hand out. If there is a new hot case that just came down in your field, put together a presentation and offer yourself as a speaker. Community cable TV and radio are great sources for exposure. The FCC requires that they all do a minimum number of community service hours of broadcasting (usually in the wee hours of the morning). They are always looking for content. Offer to put together a 30 minute segment on limited scope representation. They will run it at all hours of the day and night to meet their quota. I did one of these years ago, and when I walk into the dry cleaner, I am likely to be told “I saw you on TV last night.” Get listed in online yellow pages. This is much cheaper than the print version and reaches more people. And never forget, your BEST source of referrals is your grateful unbundled clients. Attorneys report consistently that their limited scope clients are their favorites, and the feeling is mutual. Instead of the traditional (and frankly paternalistic) attorney/client relationship, limited scope is a team effort. Clients love being treated with respect. They love the fact that they are only paying for what they need. They have a greater appreciation for what you do since they have tried (sometimes with limited success) to do it themselves, and they saw first hand how hard it is to do it well. They will talk to their friends, and before long, a sub-specialty is born.
- Insert sample Q & A from PLI here