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As part of my mission to bring legal representation to those who cannot otherwise afford it, I recently came across this relatively new form of representation called limited scope representation, or what is also known as “unbundled” legal services. My research into this started with an article in “Ohio Lawyer” and led to me sitting down to read the entire ABA Handbook on limited scope representation and here is what I learned:
In 1994, the ABA did a study of low to moderate income households (under $60,000/year) and found that 7/10 low income households and 6/10 moderate income households did NOT use the legal system to resolve their legal issues.[i] And, this was largely due to the fact that they did not have access to affordable legal representation reasons being that hourly rates and retainers are simply more than these individuals can afford.
Further, these individuals seeking legal representation are typically involved in cases relating to family law, bankruptcy, housing, landlord/tenant, and community law issues that usually only require filling out forms to be filed with the Court. However, these individuals usually do not have access to the necessary resources without the aid of an attorney, whose retainer and hourly fees they cannot typically afford. So, how can we, as attorneys, limit our representation of these individuals so that we get paid and they get full access to legal representation?
How Does it Work?
There are many different ways to limit representation, most of which will vary by type of case. However, the main thing to keep in mind is that you are NOT limiting the quality of representation you give each client.[ii] Therefore, you should interview the client as thoroughly as you would a client for whom you are providing full representation. The ABA Handbook provides valuable interview checklists to follow regarding limited scope representation.
After the interview, you can determine which tasks the client will perform and which tasks the attorney will perform. A common example is that the attorney will charge a flat fee to prepare filings for the client that the client then files pro se. Another example is paying as you go, in which the client pays the attorney at the end of each meeting or court appearance. Also, the attorney may “coach” the client during mediation or a hearing in which the attorney is present, but does not enter an appearance as the client’s attorney. Again, the ABA Handbook provides several sample limited scope retainer agreements that have been approved by ethics committees in various states.
Is it Ethical?
At its inception, limited scope representation or “unbundling” raised ethical questions under the Model Rules of Professional Conduct, namely whether the limitation was “reasonable under the circumstances.” Ethics committees in several states, including Ohio, have stated that limited representation is “reasonable under the circumstances” provided that the limits are clearly described, the client gives informed consent, and all agreements and the client’s informed consent are in writing and signed by both the client and the attorney. Further, the attorney should modify the agreement should the scope change and amend the original to reflect these changes as necessary. Finally, it is important to remain in contact with the courts in which you normally work when you are providing limited representation. This way everyone remains clear about who is to be contacted about what, where pleadings should be mailed/served, and whether you as the attorney can accept service for the client. This also makes withdrawal easier when you have finished representing a client in a particular matter because if the judge knows from the beginning that your representation is limited, the judge is more likely to allow you to withdraw.
What Are the Benefits?
Limited scope representation may seem like it does not have many benefits, at first. However, limited scope representation often has the potential to turn into full scope representation. And because the fee is usually flat or based on services provided, attorneys have clients who are fully collectible up front. Finally, “limited scope legal services offer attorneys the ability to say ‘yes’ more often to more consumers . . . by offering limited scope services . . . at affordable flat-rate prices.”[iii]
[i] American Bar Association, Handbook on Limited Scope Legal Assistance, pg. 10.
[ii] Pruett, Eileen, and Bert Whitehead Tiger. "Limited Scope Representation: A New Way of Thinking About Accessible Legal Services." Ohio Lawyer 30.5 (2016): 16-21. Print.
[iii] Id. at 20.
Kate A. Venable
Kate A. Venable is an attorney in Youngstown blogging about her firm and hot topics in legal news.