When lawyers unbundle their legal services, they break down the tasks related to a client’s case and tackle certain parts, while the client addresses the remaining parts.
Instead of offering a complete set of services from start to finish, the lawyer provides specific, limited-scope representation to clients who can’t afford (or don’t want) full representation.
Unbundled services help pro se litigants and others with limited means gain access to legal assistance they would not otherwise have. It also enables lawyers — particularly solo and small firm practitioners – to compete with big, traditional firms as well as online legal services like LegalZoom and Rocket Lawyer.
The American Bar Association (ABA) encourages lawyers to offer unbundled services or limited representation, when appropriate. Most states have adopted the ABA Model Rule 1.2(c) or a similar rule allowing limited representation.
Minnesota fully adopted the rule, which states, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
Despite widespread support for unbundled services from the ABA and many state bars, lawyers need to consider the ethical implications when providing limited representation.
Earlier this month, at an MSBA-sponsored CLE program, Patrick Burns, First Assistant Director of the Office of Lawyers Professional Responsibility, discussed ethical considerations and best practices in limited scope engagements. They include the following:
1. Limited representation creates an attorney-client relationship between you and the client
Delivering limited representation to a person — even it involves a single instance of giving brief advice — creates an attorney-client relationship. If it is reasonably foreseeable that a person will rely on your advice, an attorney-client relationship is created. This means the ethical responsibilities of competence, diligence, confidentiality and loyalty apply in limited scope engagements.
Rule 4.2, MPRC prohibits communication about the subject of representation with a person you know to be represented by an attorney. Even when the person is receiving only limited representation from another attorney, the best practice is to communicate directly with that attorney until the attorney consents to your direct contact with the person.
Conflict-of-interest issues cannot be ignored in limited representation. The lawyer or law firm must run conflicts-of-interest checks against clients receiving full representation as well as those receiving limited representation.
2. The limits of representation must be reasonable under the circumstances of the case
The lawyer must evaluate the nature of the client’s matter, the client’s sophistication and abilities, and whether the limited scope will actually benefit the client.
Even if the representation is limited, it must always be competent and thorough, in accordance with Rule 1.1, MRPC. The lawyer needs to consider the substantive law involved. If a matter is so complex that full representation is required, the lawyer should avoid giving unbundled services. The lawyer also has to carefully assess the client’s needs and objectives, from the get-go, to decide whether full representation or limited scope engagement is appropriate.
Limited-scope representation is less common in litigation cases, is problematic in criminal defense and complex family law matters, and is inappropriate in consumer bankruptcy proceedings.
In other cases, it’s reasonable to provide limited scope engagement to help clients with a specific part of what they are trying to accomplish. In immigration practice, limited representation is appropriate when parts of the case can be competently handled by a sophisticated and capable client, and the limited scope would benefit the client.
For instance, in a marriage-based green card case, an immigration attorney could start by asking the U.S. citizen petitioner and her foreign national spouse detailed questions about their marriage and the spouse’s immigration history and whether he has ever been arrested, charged or convicted of a crime. After carefully determining eligibility, the lawyer then advises the clients to move forward with the application.
To save money, the clients might want to prepare the paperwork on their own, but then have the lawyer review it for accuracy and completeness before they file it with USCIS. The lawyer might also counsel the clients on what to expect at the green card interview, but not represent them at the interview. Assuming there are no red flags (e.g., marital separation, criminal convictions, fraud or willful misrepresentation to obtain immigration benefits), limited representation can work in such cases.
3. The client must consent to limited representation
The client must give informed consent to the limited scope of the representation. The definition of “informed consent” is set forth in Rule 1.0(f), MRPC, which states: “’Informed consent’ denotes the 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.”
Burns advises lawyers to communicate three key things to the client: a) what services the lawyer will provide to the client, b) what services the lawyer will not provide to the client, and c) what the client will need to do on his own once the lawyer completes his part of the work.
Lawyers also ought to communicate the benefits of full representation and the risks of limited representation. The client needs to acknowledge that he is responsible for all other tasks and issues, which are not included in the limited scope, to complete the matter.
While Rule 1.5(b), MRPC, does not require a written retainer agreement, Burns recommends having one, especially when the representation is limited in scope. The scope of representation and rate or fee must also be communicated before or within reasonable time after beginning the representation.
4. Limited scope engagements may include ghostwriting
The Minnesota ethics rules do not address ghostwriting documents, including pleadings, for clients. Although ghostwriting is criticized for deceiving the court, circumventing Rule 11 of Civil Procedure, and unfairly providing advantage to pro se litigants, it is permissible in limited scope engagements.
Burns notes that lawyers who assist pro se litigants by ghostwriting pleadings must ensure that the pleading is not frivolous and has a good faith basis in fact and law. The lawyer is still on the hook for Rule 11 sanctions for drafting the pleading, even when he doesn’t sign it, if such a pleading otherwise warrants such discipline.
Lawyers may indicate they helped in drafting the document, but the client can make changes, take your name off, and has control over what gets filed with the court.
Choosing to not disclose your legal services does not amount to an intent to deceive the court. A pro se litigant’s receiving legal assistance behind the scenes is not material to the merits of the case. But the court may ask the client who helped in drafting the document and could call you in to describe the circumstances of the drafting. So keep a copy of the document in the form you delivered it to the client.
5. Do not ask for a malpractice waiver
It might be tempting to ask clients to waive in advance any possible malpractice claims that may arise from limited representation. But from a practical and client relations perspective, it’s better not to ask for one.
Rule 1.8(h), MRPC sets forth the steps lawyers must take to obtain an agreement limiting malpractice liability. The client must have independent counsel in making such an agreement. It is very unlikely that independent counsel will advise the client to prospectively limit their malpractice claims. Keep in mind also that malpractice claims are different from ethics complaints.
The best practice is to not commit malpractice! Fulfill your ethical responsibilities in limited representation just as you would in full representation. Just be clear on what your duties are and what they are not. You cannot be found negligent for failing to perform tasks that you had no duty to complete.
* * *
In general, limited representation is favored by the ABA, state bars and ethics committees. It increases access to legal assistance and advice, especially for those who cannot afford full representation. Offering a la Carte or unbundled legal services is also good for business. It enables lawyers to compete with big firms and online legal services.
But lawyers must consider the ethical implications when providing unbundled legal services to avoid harming the client’s interests and facing an ethics complaint or malpractice claim.
This article provides general information only. Do not consider it as legal advice for any individual case or situation. The sharing or receipt of this information does not create an attorney-client relationship.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance.
# # #
Photo by: Geraint Rowland