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JUDICIAL COUNCIL OF CALIFORNIA

ADMINISTRATIVE OFFICE OF THE COURTS

455 Golden Gate Avenue

San Francisco, California 94102-3688

Report

TO: Members of the Judicial Council

FROM: Family and Juvenile Law Advisory Committee

Hon. Mary Ann Grilli and Hon. Michael Nash, Co-chairs

Michael A. Fischer, Committee Co-counsel

Bonnie Hough, Supervising Attorney, 415-865-7668, bonnie.hough@jud.ca.gov

DATE: March 14, 2003

SUBJECT: Family Law: Limited Scope Representation (adopt Cal. Rules of Court,

rules 5.170 and 5.171; adopt form FL-950 and approve forms FL-955,

FL-956 and FL-958) (Action Required)

Issue Statement

Family law courts serve increasing numbers of litigants who represent themselves in court. Many of these litigants would like the assistance of an attorney for parts of their cases even if they cannot afford full representation. At the request of the State Bar, the California Commission on Access to Justice prepared the Report on Limited Scope Legal Assistance with Initial Recommendations, which made a number of recommendations aimed at encouraging attorneys to provide limited scope representation. The Board of Governors of the State Bar has adopted these recommendations, which include asking the Judicial Council to develop rules and forms to enable limited scope representation so that attorneys can assist self-represented litigants, thereby increasing access to justice and encouraging court efficiency.

Recommendation

The Family and Juvenile Law Advisory Committee recommends that the Judicial Council, effective July 1, 2003, adopt rules 5.170 and 5.171 of the California Rules of Court; adopt form FL-950; and approve forms FL-955, FL-956 and FL-958 to facilitate attorneys providing limited scope representation in family law courts.

The proposed rules and forms are attached at pages 9–20.

Rationale for Recommendation

Limited scope representation is a relationship between an attorney and a person seeking legal services in which it is agreed that the scope of the legal services will be limited to specific tasks that the person asks the attorney to perform. This is also called “unbundling” and “discrete task representation.” This issue is of concern to the judiciary as it faces increasing numbers of self-represented litigants at a time of reduced funding. Reports from courts indicate that as many as 80 percent of the litigants in family law matters are self-represented.

At the request of the president of the State Bar of California, the Commission on Access to Justice established a Limited Representation Committee. The committee was composed of representatives from the private bar and the judiciary, legal ethics specialists, and legal services representatives. Their work was informed by legal research and discussion as well as by a series of focus groups that included private attorneys, judicial officers, legal services representatives, insurance company representatives, lawyer referral service representatives, litigants, family law facilitators, and legal ethics specialists. Focus groups and individual interviews were also conducted with current and potential users of limited scope services.

In October 2001 the committee issued a Report on Limited Scope Legal Assistance With Initial Recommendations. The Board of Governors of the State Bar of California approved those initial recommendations on July 28, 2001. Some of the recommendations, categorized by the committee as “court-related,” called for the committee to work with the Judicial Council to adopt rules and forms.

Limited scope representation helps self-represented litigants:

· Prepare their documents legibly, completely, and accurately;

· Prepare their cases based on a better understanding of the law and court procedures than they would if left on their own;

· Obtain representation for portions of their cases, such as court hearings, even if they cannot afford full representation; and

· Obtain assistance in preparing, understanding, and enforcing court orders.

This assistance can reduce the number of errors in documents; limit the time wasted by the court, litigants, and opposing attorneys because of the procedural difficulties and mistakes of self-represented litigants; and decrease docket congestion and demands on court personnel. In focus groups on this topic, judges indicated a strong interest in having self-represented litigants obtain as much information and assistance from attorneys as possible. They pointed to the California courts’ positive experience with self-help programs such as the family law facilitator program, which educates litigants and assists them with paperwork. These programs, however, cannot meet the needs of all self-represented litigants and, because of existing regulations, must limit the services they can offer.

The proposed forms and rules are designed to help facilitate attorneys providing this assistance as called for in the report of the Limited Representation Committee:

· A rule of court that would allow attorneys to help litigants prepare pleadings without disclosing that they assisted the litigants (unless they appear as attorneys of record or seek the award of attorney fees based on such work);

· A form to be filed with the court clarifying the scope of representation when the attorney and client have contracted for limited-scope legal assistance; and

· A simplified notice of withdrawal for cases when an attorney is providing limited scope assistance.

Rule 5.170, Nondisclosure of attorney assistance in preparation of court documents

The proposed rule provides that an attorney may assist in the preparation of family law pleadings without disclosure if he or she is not the attorney of record. Limiting the scope of representation to the preparation of family law pleadings is a widespread practice in California. Currently, there is no California statute or rule that expressly permits or prohibits attorneys’ assistance of clients in the preparation of pleadings or other documents to be filed without disclosing their role to the court.

Some courts in other jurisdictions have expressed concern that providing anonymous assistance to a self-represented litigant defrauds the court by implying that the litigant has had no attorney assistance. The concern is that this might lead to special treatment for the litigant or allow the attorney to evade the court’s authority. However, California’s family law courts have allowed ghostwriting for many years. Family law facilitators, domestic violence advocates, family law clinics, law school clinics, and other programs and private attorneys serving low-income persons often draft pleadings on behalf of litigants.

Judicial officers in the focus groups reported that it is generally possible to determine from the appearance of a pleading whether an attorney was involved in drafting it. They also reported that the benefits of having documents prepared by an attorney are substantial.

In focus groups, private attorneys who draft pleadings on behalf of their clients revealed that they would be much less willing to provide this service if they had to put their names on the pleadings. Their reasons included:

· Fear of increased liability;

· Worry that a judicial officer might make them appear in court despite a contractual arrangement with the client limiting the scope of representation;

· Belief that they are helping the client tell his or her story, and that the client has a right to say things that attorneys would not include if they were directing the case;

· Concern that the client might change the pleading between leaving the attorney’s office and filing the pleading in court;

· Apprehension that their reputation might be damaged by a client’s inartful or inappropriate arguing of a motion;

· Concern that they would be violating the client’s right to a confidential relationship with his or her attorney; and

· Worry that they may not be able to verify the accuracy of all the statements in the pleading, given the short time available with the client.

It does not appear that the filing of ghostwritten documents deprives the court of the ability to hold a party responsible for filing frivolous, misleading, or deceptive pleadings. A self-represented litigant makes representations to the court by filing a pleading or other document about the accuracy and appropriateness of those pleadings. (Code Civ. Proc., §128.7(b).) In the event that a court finds that section 128.7(b) of the Code of Civil Procedure has been violated, the court may sanction the self-represented litigant. The court could also inquire of the litigant who assisted in preparation of the pleading and lodge a complaint with the State Bar about the attorney’s participation in the preparation of a frivolous or misleading document, whether or not his or her name is on the pleading. (See Los Angeles County Bar Association, Formal Opinion 502, November 4, 1999.) Given that the current practice is to not require ghostwriters to disclose their participation in a case and no widespread problems have been noted, there seems to be no reason to adopt a rule requiring disclosure of the drafter’s identity in every case. Such a rule would likely discourage access to the courts, leave more litigants without attorney assistance in the drafting of pleadings, require more courts to decipher pleadings by unassisted self-represented litigants, and cause continuances to allow time for filing and service of correct and complete pleadings.

Under the proposed rule, an attorney providing limited scope representation must disclose his or her involvement if the litigant is requesting attorney fees to pay for those services, so that the court and opposing counsel can determine the appropriate fees. Awarding attorney fees when a litigant receives assistance with paperwork or preparations for a hearing may also help encourage attorneys to provide this service. Family Code section 2032 states that the court “shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately.” The only counsel many litigants can afford, even with attorney fees awards, is counsel willing to provide limited scope legal services. If a litigant were able to present a case “adequately” through coaching or assistance with preparation of a pleading, an award of fees might also be appropriate.

Rule 5.171, Application to be relieved as counsel upon completion of limited scope representation

This new rule clarifies that attorneys who have completed the tasks specified in an agreement with a client for limited scope representation may use either the procedure set forth in rule 376 or forms FL-955, FL-956, and FL-958 to request that they be relieved as counsel in cases where they have appeared before the court as attorney of record and the client has not signed a Substitution of Attorney–Civil (form MC-050).

Notice of Limited Scope Representation (new form FL-950)

One of the key attorney services desired by the self-represented litigants in focus groups was the argument of a motion or trial in court. This service is generally in the best interest of the judiciary, since attorneys are aware of local rules and procedures, rules of evidence, and the scope of legally relevant issues. Counsel can give judicial officers a clear presentation of the case, saving significant court resources.

However, this is an area in which attorneys often are cautious about providing limited scope services. Lawyers need certainty that the courts will abide by the limitations contained in the retainer agreement. In general, while the court may prefer that an attorney represent a litigant for the entire case, the court’s desire for more litigants to be represented in court proceedings can effectively be fulfilled by allowing limited scope services.

Form FL-950 is intended to clarify to the court and other parties that an attorney is making an appearance for a limited issue or for only one hearing. The form would provide notice to the court and the other party and would ensure a clear understanding between the client and lawyer regarding the scope of the service. It would also inform clerks and opposing counsel who the attorney of record is and to whom notice should be sent for various stages of a case.

Application to Be Relieved as Counsel Upon Completion of Limited Scope Representation (new form FL-955)

This form is designed to provide the court and opposing party notice when the limited scope of the representation has been terminated if form MC-050 Substitution of Attorney–Civil is not completed. It also provides notice to a litigant that the attorney believes that the representation is completed so that the litigant has the ability to respond if he or she believes that the representation is not completed.

This form is designed to meet the requirements of Code of Civil Procedure section 284, which requires that if the consent of the client and attorney is not filed with the clerk or entered upon the minutes then application must be made to the court by either the attorney or the client, after notice from one to the other, and the court must make an order.

This proposed form and procedure to be relieved as counsel upon completion of limited scope representation are somewhat simpler than those procedures set forth in rule 376 of the California Rules of Court due to the different nature of the relationship between the attorney and client in a limited scope representation arrangement. Warning language contained in the forms for limited scope representation has been simplified and designed to be more reflective of family law proceedings.

Objection to Application to Be Relieved as Counsel Upon Completion of Limited Scope Representation (new form FL-956)

This new form has been developed to allow a party who does not believe that his or her attorney has completed the tasks contracted for to file an objection with the court and request that the attorney not be relieved as counsel. This form provides space for a hearing date to be set by the clerk.

Order On Application to Be Relieved as Counsel Upon Completion of Limited Scope Representation (new form FL-958)

This new form was developed to meet the requirements of Code of Civil Procedure section 284 and provide a clear record for the court and all parties to the litigation that the attorney providing limited scope representation is relieved as counsel in cases where a Substitution of Attorney–Civil (form MC-050) has not been filed.

Alternative Actions Considered

The Judicial Council could choose not to take any action. Ghostwritten pleadings would still be allowed, since there is no prohibition by statute or rule. However, it appears that many reputable attorneys would be reluctant to assist litigants in preparing pleadings without the council’s clarification of this established practice. Attorneys might make appearances on limited issues before the court, but there would be no form or mechanism to alert the court that the appearance was for a limited purpose and no way to ascertain the clients’ awareness of the limited scope of representation. Fewer attorneys would be likely to provide limited representation to clients, precluding clients from receiving much-needed assistance and the courts from receiving the benefit of an attorney-argued motion.

Comments From Interested Parties

A version of these proposed rules and forms was circulated in spring 2002. The comments were generally very positive, but a number of suggestions were made to improve the forms. Given the significance of the changes and the importance of this initiative, this proposal was recirculated for comment. Two additional forms and an additional rule regarding withdrawal of counsel have been developed based upon the comments received.

This new invitation to comment was circulated to the Administrative Office of the Courts’ main mailing list of presiding judges and executive officers, the State Bar, and other groups interested in the administration of justice. In addition, it was circulated to all family law facilitators, family law information centers, child support commissioners, and legal services programs, as well as the Family and Juvenile Law Advisory Committee’s list of family law practitioners. Thirty-two written comments were received. The comment chart is attached at pages 21–45.

Ten of the 32 commenters approved of the proposed rules and forms as circulated, with no changes required. Many applauded the Judicial Council on its commitment to increasing meaningful access to the court for litigants who are generally unrepresented.

Twenty commenters approved of the proposal and suggested ways to make the forms clearer, including adding a proof of service to the objection, allowing multiple parties to be listed on a proof of service, and putting some warnings to the client in bold to help them stand out.

One commenter took no position. Another commenter, the Orange County Bar Association, opposed the entire proposal, stating that it does not support the concept of limited scope representation. However, the rules and forms committee of the Superior Court of Orange County suggested that the forms and rules be approved as they would “formalize procedures our court has put into place.”

Five commenters responded specifically to the question of whether the court should retain the authority to require attorneys to remain attorneys of record beyond the scope of the agreement for limited scope representation. All of them responded negatively to that suggestion. The committee agrees that it is not appropriate for the court to violate the express agreement between the attorney and client regarding the scope of representation and that clients and courts would not receive the benefit of attorneys arguing parts of the case if the attorneys were uncertain whether they would be relieved as counsel.

There were a number of concerns raised about the proposed procedure for withdrawal by attorneys upon completion of limited scope representation if the client has not signed a substitution of attorney form as agreed. Those issues included how to track the request in the clerk’s office, who sends the notice of hearing, and concerns by attorneys that the process was too cumbersome. The committee recommends that the proposed process be amended to eliminate the clerk’s responsibility of calendaring the request for withdrawal and instead, require the attorney to resubmit the Application to Be Relieved as Counsel Upon Completion of Limited Scope Representation (form FL-955) after the waiting period. As the attorney is primarily interested in being relieved as counsel and this procedure can be accomplished by mail, this seemed a better option than placing the responsibility on the court clerk.

As previously noted, the Board of Governors of the State Bar of California approved the recommendations to develop these rules and forms. The State Bar’s Standing Committee on the Delivery of Legal Services supported the proposal as submitted. The State Bar’s Committee on Professional Responsibility provided significant support and informal comments prior to circulation of the proposal.

Some courts have included in their local strategic plans the development of panels of attorneys willing to provide limited scope representation. Some are already piloting the proposed forms.

Implementation Requirements and Costs

The use of the new forms would involve printing costs. Training on issues such as courtroom management in cases when attorneys are providing limited scope representation is already contemplated in the training for family law judicial officers. The State Bar is developing trainings for attorneys regarding ethical and effective limited scope representation. A workshop on limited scope representation will be offered at its annual meeting in September.