Florida Bar News

August 15, 2002

www.flabar.org

Panel proposes unbundled legal services rules
For use by family law practitioners

By Gary Blankenship
Senior Editor
Attorneys entering into agreements for limited representation with clients would have to get those agreements in writing under proposed new rules from a special Bar committee.

The final report of the Unbundled Legal Services Special Committee II has been submitted to the Board of Governors and has drawn varying comments from Bar and legal groups.

The committee was created last April by former Bar President Terry Russell at the request of the Florida Supreme Court. The court was following up on the report of the first unbundled services committee, which said there was a need for limited, or unbundled, representation in family law work but that current Bar rules don't allow it. That panel recommended the Family Law Rules Committee address a proposed new Family Law Rule 12.040 which addressed limited attorney representation, including notification requirements.

The Supreme Court, however, wrote Russell and asked him to appoint another committee specifically to draft rules for unbundled services. The court noted it was not prejudging the issue, but wanted to have something in writing when it addressed the matter.

The committee's final report noted it published preliminary rules in the July 15 Bar News and those were somewhat changed in the final report. The official notice stated that the rules were subject to change before submission to the board.

The committee's recommendations include:

• Even though Rule 4-1.2 does not preclude unbundled services, the committee recommended clarifying the rule to specifically say it is allowed. "The comment language makes it clear that the limitation must be reasonable, gives examples of permissible limitations, and clarifies that an attorney-client relationship is formed under a limited representation thereby invoking all of the ethical obligations and duties imposed by the Rules Regulating The Florida Bar," the report said.

• Rule 4-4.2 amendments would clarify how to communicate with an opposing party who has engaged an attorney for limited services. "The person is considered to be unrepresented unless opposing counsel has received a written notice of appearance or a written notice setting forth the time period during which opposing counsel is to communicate with the limited representation lawyer about the matters within the scope of the representation," the report said. The language is based on a proposed rule from Washington state. A similar change also was proposed to Rule 4-4.3.

• Approving a new Rule 12.040 of the Family Law Rules of Procedure. The rule would provide that limited representation is allowed — including for court appearances — and specify that court permission is required when the attorney handling the entire case wants to withdraw, when the attorney handling the entire case wants to limit the representation but still handle some aspects, and when the attorney providing limited representation wants to withdraw. Court permission would not be needed when an attorney who contracted for limited services completes those services. Other parts of the rule would encompass the requirements of Professional Ethics Opinion 79-7 that pleadings must state if an attorney assisted a pro se litigant, that an attorney providing limited services must state so on the signature page of any pleading or document prepared by the attorney, and that during the time of limited representation, pleadings and other doucments must be served on both the attorney and the party.

• If the Bar and procedural changes are approved, then Florida Rule of Judicial Administration 2.060 must be amended to conform to those changes.

The committee proceeded on its work by forming two committees, one to look at ethical rules and the other at family law rules. It also looked to other sources, particularly unbundled rules proposed by Washington state. "The Washington rules are more comprehensive than the rules this committee is proposing as they would apply to all types of proceedings," the report said. "However, the committee did adopt some of the Washington language, limiting it to family law matters."

Its initial rules drafts, in addition to being advertised in the Bar News, were circulated to a variety of sections, committees, and other groups. Many considered them during the Annual Meeting and made comments, some of which were incorporated into the final version.

Comments included:

• Recommendations from the Family Law Section and the Professional Ethics Committee that unbundled representation agreements be in writing, which the committee then included by a 5-3 vote. Both also made language suggestions that the committee adopted.

• The Trial Lawyers Section executive council voted to oppose the changes, and recommended that the proposed changes to the Rules of Professional Conduct be limited to family lawyers only. The committee rejected that, arguing the conduct rules have general application.

• The Family Court Steering Committee supported the unbundled concept, but made no comments on the specific language of the proposed rules.

• The Conference of Circuit Court Judges supported the proposed rules.

• The Young Lawyers Division Board of Governors voted not to support the rules, but added that if they are adopted that the consent be in writing.

• The Small Claims Rules Committee expressed concerns about how limited representation would be put into practice and voted to oppose the rules.