Conference Background and Agenda
"SLICING THE ONION"
PROPOSED RULES OF PROFESSIONAL CONDUCT AND COURT RULES MAKE IT EASIER FOR
PRIVATE AND NON-PROFIT LEGAL PRACTITIONERS TO PROVIDE "UNBUNDLED" LEGAL SERVICES
By
Kim Prochnau
Introduction
A significant number of Washingtonians are not able to afford attorneys. Despite
the remarkable efforts of the "Access to Justice" community, the resources
provided by pro bono and non-profit legal assistance providers fall far short of
the need. In recent years, there has been much discussion of how to, and under
what circumstances, it is appropriate to "slice the onion" by providing "limited
service representation" or "unbundled" services in the area of civil law-thereby
stretching limited "free" services and making for-cost services affordable to a
larger segment of our society.
Lawyers have been providing "unbundled" services, of course, since time
immemorial. For example, many lawyers provide an initial client consultation, at
the end of which, the lawyer and client may or may not agree that the lawyer
should file suit on behalf of the client. Generally, both lawyers and clients
are comfortable with "slicing the onion" thin enough to allow for a separate
consultation without any requirement that the lawyer represent the client in the
lawsuit. This does not absolve the lawyer of his or her ethical duties, however,
to provide competent representation to the client. An attorney who, during a
brief consultation as to a possible personal injury claim, fails to adequately
inquire as to the timing of the injury and to advise the client of any
applicable statutes of limitations may be made painfully aware of this ethical
limitation through disciplinary proceedings and malpractice claims.
In recent years, a number of articles, seminars and even manuals have been
published dealing with a more formal approach to "limited legal services" or
"Unbundling". It is increasingly used as yet another tool in increasing
low-income peoples' access to justice; notable examples are the CLEAR project,
King County's Housing Justice Project and a number of Domestic Violence advocacy
organizations who provide attorneys to appear for petitioners in protection
order proceedings. Meanwhile, some solo practitioners and small law firms are
making a living at "unbundling their practices". In the area of family law, some
very experienced practitioners enjoy the decreased emphasis on accounts
receivables and other lifestyle advantages offered to them by being able to
collect their fees at the time of service and not having to commit to
representing a client for the life of what can be very protracted litigation.
This trend has encouraged both the American Bar Association (ABA), as well as
several states, to study their Rules of Professional Conduct to clarify how and
under what circumstances lawyers may agree to provide "unbundled services."
Although, at the time of publication, the ABA proposal is still pending as part
of the "Ethics 2000" initiative, several states including Colorado and Maine
have already amended their rules to address these issues.
This article is an outline of proposed changes to Washington's Rules of
Professional Conduct, Superior Court Rules and District Court Rules. (Pending
before the Supreme Court as of Sept 6, 2002). Copies of the proposed rules may
be obtained by accessing the Washington State Supreme Court's website at:
www.courts.wa.gov/rules/proposed/2002mar/home.cfm.
The Drafters' Commentary is listed on the same webpage as: "GR 9 Cover Sheet for
Suggested Amendments to the Rules of Professional Conduct."
The proposed rules were endorsed by the Access to Justice Board (ATJ),
Washington State Bar Association, Superior and District Court Judges'
Associations, and American Bar Association Standing Committee on the Delivery of
Legal Services. The rules were prepared at the request of the ATJ Board by its
Unbundled Legal Services Committee (comprised of Barry Althoff (Chair) and King
County Superior Court Commissioners Kim Prochnau and Nancy Bradburn-Johnson.)
The committee consulted extensively with national legal ethics experts and
Washington State lawyers who actually provide "Unbundled" Services; the
suggested rules incorporate comments informally received from legal service
organizations as well as lawyers and judges' committees.
Outline of Proposed Rule Changes
1. RPC 6.5
Legal service organizations, courts, and various nonprofit organizations have
established programs through which lawyers provide short-term limited legal
services- including county bar association legal clinics and the CLEAR telephone
hotline system. Such programs are normally operated under circumstances in which
it is not feasible to systematically screen for conflicts of interest as is
generally required before undertaking a representation. Because there is no
expectation by either the client or the lawyer that continuing legal services
will be rendered, and because the services will be limited in scope by agreement
with the client, this new rule relaxes the usual conflict-of-interest rules for
such short-term limited legal services.
For example, a private lawyer volunteering for an evening legal clinic may be
unable to check with his or her firm to determine whether another member of the
firm represents the landlord before advising a tenant facing an eviction. The
proposed rule would require a "conflicts check" under these circumstances for
the purpose of RPC 1.7 or 1.9(a) only if the lawyer knows that the
representation presents a conflict of interest for the lawyer (i.e. the lawyer
recognizes the landlord as being his or her client), and with RPC 1.10, only if
the lawyer knows that another lawyer in the lawyer's firm is disqualified in the
matter by RPCs 1.7 or 1.9(a) (i.e. the tenant has in their possession the
eviction papers with the lawyer's firm's name printed on the documents.). If
after commencing a short-term representation in accordance with the proposed
rule, the lawyer undertakes to represent the client on an ongoing basis, the
more stringent requirements of RPC 1.7, 1.9(a), and 1.10 become applicable.
Thus, for example, before the lawyer undertakes to represent the tenant at the
eviction hearing the lawyer will need to go back to his or her office and check
for conflicts.
Under narrow circumstances, these rules would also allow a nonprofit
organization or court-annexed program, such as CLEAR, to assign two lawyers from
the same program to represent opposing parties. The program must, however, first
demonstrate, through the use of an effective screening mechanism, that the
program will maintain the respective clients' confidences and secrets and assure
the individual lawyers' loyalty to their respective clients.
2. RPC 1.2(c)-- SCOPE OF REPRESENTATION
A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client consents after consultation.
An agreement limiting the scope of the representation shall consider the
applicability of rule 4.2 to the representation.
This rule clarifies that attorneys and clients may agree to "limited legal
services", when reasonable under the particular circumstances. The comments note
that although an agreement to limit legal services does not exempt a lawyer from
a duty to provide competent representation, the limitation is a factor to be
considered when determining the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation. A client's consent to
limiting the scope of the representation need not be in writing although it is
obviously better to do so when practicable.
3. RPC 4.2 and 4.3-COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL/ DEALING
WITH UNREPRESENTED PERSON
Under RPC 4.2 a lawyer who knows a person is represented by a lawyer as to a
particular matter generally may not communicate with that person as to that
matter.
When a person is receiving limited representation, the opposing counsel may
treat that person as not represented by counsel (and thus, the lawyer's duties
towards that person would be governed by RPC 4.3) and may communicate directly
with that person unless she or he "knows of, or has been provided with, a
written notice of appearance under which, or a written notice of time period
during which, he or she is to communicate only with the limited representation
lawyer as to the subject matter within the limited scope of the representation."
These changes address one of the most common complaints voiced by lawyers when
dealing with a person who may or may not be receiving limited services from a
lawyer. Rather than requiring the opposing counsel to speculate as to the scope
of the representation, the new rules place the burden on the lawyer providing
"unbundled services" to prepare a written notice and to make sure the opposing
counsel knows of its existence if the lawyer providing limited legal services
does not want opposing counsel to communicate directly with the client.
4. CR 4.2; CrRLJ 4.2-PROCESS-LIMITED REPRESENTATION
Representation of a person by an attorney at "…any proceeding before a
judge, magistrate, or other judicial officer on behalf of the person constitutes
an entry of [general] appearance pursuant to RCW 4.28.210 and CR 4(a)(3), except
to the extent that a limited notice of appearance as provided for under [new] CR
70.1 is filed and served prior to or simultaneous with the actual appearance."
[Bracketed material added for emphasis]
Lawyers are sometimes concerned that if they render limited legal services in a
civil proceeding (for example, counseling the client, drafting pleadings or
arguing a discrete motion) the court may not permit them to when the agreed
limited services are completed, but instead will require them to continue the
representation. There is currently no state-wide court rule specifically
permitting such limited legal services in a civil proceeding.
The amendments to this rule and CR 70.1/CRLJ 70.1 (discussed below) together
assure a lawyer that he or she may provide limited legal services in a civil
proceeding, in accordance with RPC 1.2(c), and that the lawyer may of right
withdraw upon completion of those services. The amendments specifically allow
lawyers to provide limited representation (consistent with RPC 1.2) in a civil
proceeding in Superior, District or Municipal Court and states that the lawyer
is not obligated to remain in the case beyond the agreed scope of representation
(provided that the notice requirements of this rule are met).
Some pro bono and legal assistance providers have been using "limited notices of
appearance" for several years. For example, the Eastside Legal Assistance
program (in King County) has used such notices to allow pro bono lawyers to both
appear for a protection order hearing and to immediately withdraw after the
hearing; the notice contains their client's written consent to the limited
representation. The rule in effect approves such an approach.
5. CR 70.1; CrRLJ 70.1
This new rule formally permits on a state-wide basis a "Notice of Limited
Appearance" and would specifically permit the lawyer's role to terminate without
necessity of leave of court if the rule's requirements are met.
When "…filed and served prior to or simultaneous with the proceeding, an
attorney's role may be limited to one or more individual proceedings in the
action. Service on an attorney who has made a limited appearance for a party
shall be valid (to the extent permitted by statute and rule 5(b)) only in
connection with the specific proceedings for which the attorney has appeared,
including any hearing or trial at which the attorney appeared and any subsequent
motions for presentation of orders. At the conclusion of such proceedings the
attorney's role terminates without the necessity of leave of court, upon the
attorney filing notice of completion of limited appearance which notice shall
include the client information required by rule 71(c)(1)." [i.e. date of trial,
service address of client].
Where the attorney is appearing for only one hearing and orders will be
immediately entered, they may be able to combine the notice of appearance with a
notice of completion of limited appearance and serve and file it at the hearing.
If it later develops that the hearing must be continued or presentation of
orders is set over for a later date, that attorney continues in his role until
the conclusion of the hearing or presentation. It is preferable, although not
mandatory, that the documents include an agreement signed by the client
consenting to the limited representation.
It is this author's opinion that the notice of limited appearance should be
called to the attention of the court and opposing counsel at the beginning
rather than at the end of the hearing.
6. CR 11; CrRLJ 11
One of the major ethical questions posed by "unbundled services" has been
whether lawyers may "ghost-write" pleadings for their otherwise self-represented
clients without affirmatively disclosing their involvement on the face of the
document. One federal court in Colorado has specifically forbidden the practice;
Colorado State has enacted rules requiring all pleadings to disclose the name of
any attorney providing drafting assistance. The drafters of this rule rejected
an affirmative disclosure requirement after listening to practitioners' comments
about the practical problems of an attorney avowing responsibility for a
document that might undergo significant changes at the hands of the client
before being filed. The rule, however, does clarify that the requirements and
risks of CR 11 will generally be applied to lawyers providing drafting
assistance (to the extent that objectionable material in the document is the
product of the lawyer's drafting and not the client's later changes).
This proposal would modify CR 11 to deal with the practical problem faced by
lawyers whose brief contact with the client does not make it practicable to make
the same type of inquiry into the facts as if the lawyer were providing full
service representation. For example, a CLEAR telephone consultation will not
normally allow the attorney to make any independent investigation into the
facts. When providing limited service representation, the attorney may
ordinarily rely on the client's representation of facts. However, if they have
reason to believe that such representations are false or materially
insufficient, they are required to make an independent reasonable inquiry into
the facts before assisting with any pleadings, motions or documents filed with
the courts. Thus, if a client seeks assistance with preparing a motion for
contempt for violation of a parenting plan but is not clear about the terms of
the parenting plan, the attorney might be required to read the parenting plan
before assisting the client in drafting the client's declaration.