Conference Background and Agenda
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MLAN MEMORANDUM |
Informal National Survey of Ethical Opinions Related to
“Discrete Task
Lawyering" (updated October 2003)
The
following states have issued at least
one ethical opinion on a topic related to “unbundled” legal services
a/k/a discrete task lawyering:
The
following states have indicated (either through direct contact or via web site
lists of current ethical opinions) that no
current opinions exist: AR, HI, ID, LA, NV, ND, OH, OK, OR, RI, TN, VT, and
WV.
According to Wyoming Bar staff members, the Wyoming State Bar does not publish ethical opinions. However, the Wyoming State Bar does publish disciplinary press releases that can be found on their website. Currently there are no releases concerning discrete task lawyering.
The survey
was conducted by the Maryland Legal Assistance Network (MLAN),
a project of the Maryland Legal Services Corporation. All 50 states were contacted and all states with bar
association web pages have been reviewed on-line.
Alaska:
A
lawyer may assist pro se litigants who are seeking modifications in child
support to fill out forms and to prepare motions.
A lawyer’s assistance must be disclosed unless the lawyer merely helped
the client fill out forms designed for pro se litigants.
Alaska Bar Association Ethics
Opinion 93-1, “Preparation of a Client’s Legal Pleadings in a Civil Action
Without Filing An entry of Appearance,” (May 25, 1993).
Arizona: In a domestic relations matter, an attorney can represent a
client for the purposes of giving advice and preparing pleadings without
appearing in court.
Arizona Opinion No.
91-03, (January 15, 1991).
Arizona:
No matter what
limitations are placed on the assistance provided to the pro per litigants, the
Rules of Professional Conduct still apply to the attorney.
State Bar of Arizona, “Assisting
Pro Per Litigants, Ethical Considerations”.
California:
There are ethical
issues arising from dispensing legal advice solely by telephone.
Legal services provided solely over the telephone must use a format that
enables the attorney to perform services in a competent and ethical manner and
inform his or her client effectively of any limitations on the legal services
being provided. Attorney-client
relationships normally are formed between the callers and the attorneys.
Even when attorney-client relationships are not formed, professional
responsibilities can attach to the relationship.
The State Bar of California
Standing Committee on Professional Responsibility and Conduct, Interim Opinion
No. 95-0015.
California: It is not unethical for an attorney to limit his/her
professional engagement to the consulting, counseling, and guiding of
self-representing lay persons in litigation matters, provided that the client is
fully informed and expressly consents to the limited scope of representation. Los Angeles County Bar
Association Professional Responsibility And Ethics Committee, Opinion No.
483, Los
Angeles Lawyer, (February 1996).
California:
If
a client chooses to appear pro per (pro se) and there is not a court rule to the
contrary, the attorney does not have to disclose the limited scope of
representation to the court in which the matter is pending.
An attorney may limit the scope of representation of a litigation client
as long as the client consents to the limited representation.
Los Angeles County Bar Association
Professional Responsibility And Ethics Committee, Opinion No.
502, Los
Angeles Lawyer.(November 4, 1999).
Colorado[1]: A lawyer must clearly explain limits of their representation
and must not limit their duty to the client when providing unbundled legal
services.
Colorado Bar Association Ethics Committee Formal Opinion No.
101,
“Unbundled Legal Services,” (January 17, 1998).
Connecticut: Legal Aid agencies in lieu of representation, may offer a
class on pro se divorce to individuals seeking a simple uncontested divorce and
for more complicated divorces, provided clients are fully advised of the risks
of proceeding pro se. Connecticut Informal Opinion 90-18, Legal Assistance Organizations and
Pro Se Divorce.
Delaware:
A
legal services organization may properly limit its involvement to advising
clients and preparing documents for the client.
The organization must disclose their involvement, if “the organization
provides significant assistance to a litigant”. Delaware State Bar
Association Committee on Professional Ethics, Opinion
1994-2, (May 6, 1994).
Note:
This is currently a debated issue in the State of Delaware.
The State Bar Association, the State Court System, and the Private Bar
are working together to develop a “Resource Center” for pro se litigants. The program is being designed with the assistance of the
Disciplinary Committee of the State Bar Association.
District
of Columbia: It
is permissible for lawyers to take part in on-line chat rooms and similar
arrangements through which attorneys engage in back-and-forth communications, in
“real time” or nearly “real time”, with internet users seeking legal
information, provided they comply with all applicable rules of professional
conduct. To avoid formation of attorney-client relationships through such chat
room conversations, lawyers should avoid giving specific legal advice. Washington
D.C. Bar Association, Legal Ethics Committee Opinion No. 316
Florida:
A
chief judge, by local rule, may establish a self-help program to facilitate
access to family courts. The
purpose of a self-help program is to assist self-represented litigants, within
the bounds of this rule, to achieve fair and efficient resolution to their
family law case. Florida
Supreme Court, Appendix Family Self-Help Programs Opinion, www.law.ufl.edu/opinions/su…mily-self-help-programs.
Florida:
Pleadings
or other papers prepared by an attorney and filed with the court on behalf of a
pro se litigant must indicate “Prepared with Assistance of Counsel”.
In addition, although a lawyer and client may agree to a limited scope
relationship and purpose, the lawyer owes that client the same ethical
obligations they would owe any other client.
Florida Bar Association, Opinion
79-7 (Reconsideration), (February 15, 2000).
Illinois:
Pursuant
to prior agreement with client, it is not improper for an attorney to limit the
scope of his/her representation. An
attorney may prepare pleadings in a dissolution of marriage proceeding, without
appearing or taking any part of the proceeding itself.
The client must be fully informed of the consequences of the limited
agreement, and the attorney must take any steps necessary to avoid foreseeable
prejudice to the client’s rights. Opinion
affirmed, January 1991. Illinois
State Bar Association, ISBA Advisory Opinion on Professional Conduct;
”Limiting Scope of Representation”, Opinion Number 849 (December 1983).
Kansas:
Law firms can provide services through a 900 telephone number
as long as they follow all ethical rules.
Kansas Bar Association 92-06 (1992).
Kentucky:
The
Court and the opponent should not be misled as to the extent of counsel’s
role. Counsel should not aid a
litigant in a deception that the litigant is not represented, when in fact the
litigant is represented behind the scenes.
Counsel may limit his or her undertaking and provide assistance in the
preparation of initial pleadings. The
overriding consideration should be the recognition and satisfaction of the legal
needs of indigent persons. Opinion KBA
E-343 (January, 1991)
Maine: Since the lawyer’s representation of the client was limited
to preparation of the complaint, the lawyer was not required to sign the
complaint or otherwise enter his appearance in court as counsel for the
plaintiff, and the plaintiff was entitled to sign the complaint and proceed pro
se. Maine State Bar Ethics Opinion No.
89,
(August 31, 88).
Michigan:
There
is no client-lawyer relationship between a legal services agency and the
participant of a pro se, self-help clinic, when no confidential information has
been divulged and when the participant has signed an agreement where the agency
has disavowed legal representation. Also,
a legal services agency that offers pro-se self-help clinics is not disqualified
from actively representing a party to pro se litigation when the litigation has
been filed by an individual that participated in one of the agency’s self-help
clinics. State
Bar of Michigan, Ethics Opinion, RI-301 (September 29, 1997)
Mississippi:
Where
an attorney provides limited legal advice in a public service, multi-discipline
counseling program, an attorney-client relationship is created for purposes of
determining ethical obligations. Opinion
No. 176 Of the Mississippi State Bar, (September 7, 1990).
Missouri:
The
propriety of drafting an Entry of Appearance and accompanying cover letter is
dependent on the actual language used. It
is permissible to draft a very simple Entry of Appearance and submit it to an
unrepresented opposing party. The
cover letter should clearly indicate at the beginning that the Attorney does not
represent the opposing party. The
letter should also indicate that the opposing party should consult an
independent attorney if he or she has any questions. Missouri
Bar Association, Legal Ethics Counsel Advisory Opinion No.
940161.
New York State: A lawyer who does not appear as counsel of record for a pro se litigant may prepare responsive pleadings and demands for financial disclosure, provided the lawyer investigates the matter adequately. New York Opinion 613, (September 24, 1990).
North
Carolina: Attorneys
may give legal advice and assist persons wishing to proceed pro se with drafting
documents without appearing as counsel of record.
This opinion consists of seven specific inquiries relating to this topic,
providing answers to each inquiry. North Carolina State Bar Association, RPC 114
(July 12, 1991).
North
Carolina: The
lawyer for a plaintiff may not prepare the answer to a complaint for an
unrepresented adverse party to file pro se. North
Carolina State Bar Association, Formal Ethics Opinion 6 (January 24, 2003)
Pennsylvania:
It
is not the unauthorized practice of law when a non-lawyer “fills in the
blanks” of a standard form prepared by an attorney.
A supervising attorney is not in violation of the Rules of Professional
Conduct, assuming the agent is doing nothing more than “filling in the
blanks”. Philadelphia
Bar Association Opinion
94-29, (December 1994).
South
Carolina: A lawyer may draft and submit a responsive pleading and
waiver of appearance on behalf of an opposing party in a divorce action while
representing the interests of his own client when he/she determines that the
preparation and submission of the pleadings does not constitute representation.
South Carolina Bar: Ethics
Advisory Opinion 90-18.
Utah: An attorney may provide limited representation to a party engaged in a divorce. However, this must be limited to advising the party and assisting with pleadings. The attorney should not so limit the representation without first fully informing the party of the proposed limitation and obtaining the party's informed consent, and providing advice about the relevant law. Utah State Bar Ethics Advisory Opinions Committee, Opinion No. 02-10 (December 18, 2002).
Washington: Unbundled legal services (in the family law context) is defined as a party engaging an attorney to take limited measures, such as helping to prepare initial pleadings and perform child support calculations, without either the lawyer or the client being obligated to the other for the duration of the proceedings. Washington State Bar Association, Informal Ethical Opinion No. 1763 (1997).
This
article discusses ethical considerations when limiting the scope of an
attorney’s representation. The
author concludes the “unbundling” of legal services is ethically
permissible. Althoff,
Barrie, "Limiting the Scope of Your Representation: Questions of Cost, Candor,
and Disclosure”, Washington State Bar Association, Chief Disciplinary Counsel,
Defined Task Representation workshop Access to Justice Conference, (June 1997)not
an ethical opinion.
Wisconsin: A lawyer may prepare and disseminate an “Ask the Lawyer”
column as long as they shun personal publicity and the lawyer is motivated by
the desire to assist one who does not realize that he/she may have a particular
legal problem or who does not know of his/her legal rights or obligations.
Public dissemination by a lawyer does not prevent his accepting
employment as a result of the advice given, so long as he/she does not emphasize
his/her own professional experiences or reputation.
State Bar of Wisconsin, Wisconsin
Ethics Opinions, E-79-5, “Ask the
Lawyer” Column, (July 1998).
Virginia:
It
is ethically permissible for a lawyer to advise and assist the pro se litigant
and provide: general legal advice,
recommendations for courses of action to follow discovery, legal research, and
redrafting of documents prepared by the litigant.
Specifically, it is not unethical for an attorney to prepare discovery
requests, pleadings, or briefs for signature by the pro se litigant.
The opinion goes on to add that failure to disclose that the attorney
provided active or substantial assistance, including the drafting of pleadings,
may be a misrepresentation. Virginia State Bar Association, Legal Ethics Opinion 1127,
“Attorney-client Relationship-Pro Se Litigant:
Rendering Legal Advice”, Committee Opinion, (November 21, 1988).
● Raises
Concerns with Unbundling Issues
ABA:
The extent of assistance by counsel is an important issue and if it goes
to a certain extent without counsel disclosing his/her assistance there may be a
misrepresentation. American Bar Association
Informal Ethics Opinion 1414, “Conduct of Lawyer Who Assists Litigant
Appearing Pro Se,” (June 6, 1978).
Illinois:
A
lawyer aids in the unauthorized practice of law, and may violate rules
pertaining to confidentiality, conflicts, and the duty to communicate with and
explain matters to a client, by limiting his role in a real estate transaction
to the drafting of documents and delegating to the real estate broker.
Illinois State Bar Association
Advisory Opinion on Professional Conduct, Opinion No.
94-1, (July, 1994).
Indiana:
The
drafting and providing of generic “fill in the blank” articles of
incorporation forms, by-laws, lease documents, and promissory notes to an
accountant to be used by the accountant in assisting the accountant’s small
business clients constitutes aiding in the unauthorized practice of law. Indiana
State Bar Association, Legal Ethics Committee Opinion No. 2 (1995)
Iowa: “Ghostwriting” of pleadings is a deception on the
court, where the pleading is represented as pro se, but the party has received
counseling and advice from a lawyer. Iowa
Board Opinion
94-35, (May 23, 1995).
Massachusetts:
Although
an attorney may provide a pro se litigant with limited legal services, the
situation raises multiple ethical concerns.
Attorney ghostwriting has been viewed as an attempt to gain an unfair
advantage. Liability for services
rendered extends to all services actually rendered.
Massachusetts Bar Association
Committee on Professional Ethics, Confidential Opinion, January 9, 1998.
Massachusetts: An attorney may provide limited background advice and
counseling to pro se litigants. However,
providing more extensive services, such as drafting (“ghostwriting”)
litigation documents, especially pleadings, would usually be misleading to the
court and other parties and therefore would be prohibited. Opinions of the
Massachusetts Bar Association Committee on Professional Ethics, Opinion 98-1,
(May 27, 1998).
Missouri:
In
a divorce case, it is unethical for an attorney to prepare the Entry of
Appearance, Waiver of Service and pro forma Answer for the unrepresented spouse
of the attorney’s client. Also, in a case for separation, it is unethical for
attorney to draft the Answer to a petition for a marriage separation for the
unrepresented spouse of the Attorney’s client. Missouri
Bar Association, Legal Ethics Counsel Advisory Opinion No.940049.
Montana:
The
sale of “do it yourself” divorce kits containing legal forms, etc. is
unethical. Such a sale presents the very real possibility that the client will
suffer harm as a result of failure of the kit to meet particular needs. Montana
State Bar Association, Advisory Ethics Opinion, No.
900409.
Nebraska:
Non-lawyers may not, through a “900” number telephone
service, provide legal advice to the public.
Attorneys encouraging such an enterprise would be in violation of DR
3-101, which prohibits a lawyer from aiding a non-lawyer in the practice of law.
Advisory Committee to the
Nebraska
State Bar Association, Advisory Ethics Opinion No. 94-2
New
Jersey: The establishment of a 900 number pay-per-call service is not
per se unethical. However, there
are several problem areas, which if not addressed, could result in malpractice
liability and/or ethical exposure. New
Jersey State Bar Opinions on Advertising, 26 CAA Opinions, Professional
Responsibility in New Jersey, Opinion No.
17, (April 25, 1994).
New
Mexico: A lawyer may participate in pro bono clinics that provide
educational programs to individuals interested in pro se representation,
provided the programs do not provide specific legal advice to the individual.
State Bar of New Mexico Advisory
Opinions Committee Advisory Opinion
1987-6.
New
York: Undisclosed
participation by a lawyer in drafting pleadings or in rendering other active and
substantial assistance to a litigant who thereafter represents himself/herself
as being without professional assistance is improper and prohibited.
The Association of the Bar of the
City of New York, No. 1987-2, Committee on Professional and Judicial Ethics,
Formal Opinion, (March 23, 1987).
South
Dakota: South Dakota lawyer may not participate in an Internet
Referral Service taking an advertising fee and a share of legal fees to refer
cases to South Dakota lawyers and provide no legal services. State Bar of South
Dakota Ethics Opinion
98-10, (January 12, 1999).
Texas[2]:
A
Texas attorney addressed the ethics committee, submitting a “Divorce Kit for
Do-it-Yourselfers”. The Committee opined, “the ‘kit’ practice would
encourage rather than discourage self-representation; put an undue burden on the
Clerks and Courts, and probably, in many instances, result in improper
representation of a client”. Texas
Ethics Committee, Opinion
364, (April, 1973).
Utah:
A disclaimer stating that no attorney/client relationship existed for
advice given over a 900 # is ineffective to negate such a relationship.
Utah State Bar Ethics Opinion
96-12, January 24, 1997
The initial survey was
conducted by Marla Zide, MLAN research assistant. (June-August 2000) . The
material was updated in October 2003 by Richard Chambers, MLAN research intern
(October 2003).
Ayn Crawley
- MLAN Director
[1] In Johnson V. Board of County Commissions for the County of Fremont, 85 F.3rd 489 (1996), the Court held the attorney violated the Colorado Rules of Professional Conduct that permit a lawyer to limit the objectives of their representation only if the client consents after consultation. The Court found the attorney failed to demonstrate that she either consulted or brought the matter to the attention of the district court.
[2] Upon
petition by the state bar in a subsequent case,
Unauthorized Practice of Law
Committee v. Parsons Technology Inc. 1999 WL 47235 (N.D. Tex 1999), the
court enjoined the sale of “Quicken Family Lawyer”, a self-help software
package. During the appeal to the Fifth Circuit, 179 F.3d 956 (1999), the
Texas state legislature enacted a 1999 amendment to §81.101 which provides
that “the ‘practice of law’ does not include the design, creation,
publication, distribution, display, or sale…[of] computer software, or
similar products clearly and conspicuously state that the products are not a
substitute for the advice of an attorney”. A May 2000 Texas State Bar UPL
Task Force has recently recommended the relaxation of
the requirements to practice law, “where the legal service being
provided can be readily determined to be of a simple nature and/or where
others have skills, training, and ethical standards which provide some
assurance of protection to the public”.(available
at www.texasbar.com)