Limited Scope Representation is not a Time to Play Fast and Loose with the Rules

Unbundling

Let’s review the basics.  ABA Model Rule 1.2 (c) allows a lawyer to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.  In those jurisdictions that have adopted similar language, many have added a requirement that informed consent be confirmed in writing.  Now as a risk guy, I like that writing requirement regardless. There are just too many word and word disputes in the world of malpractice and discipline.

Speaking personally, I’m one who believes that the movement toward limited scope representation has been a good thing and long overdue.  Speaking professionally, however, I need to share a caution. Just because our rules of professional conduct allow you to limit your scope of representation, this doesn’t mean you have permission to do so in whatever fashion you desire. All of the other Rules of Professional Conduct remain in play and that’s important to remember. Yes, you may limit your scope; but doing so doesn’t exempt you from your duty to provide competent representation. For example, estate planners will sometimes limit their scope. Perhaps a client just wants to pay to have a trust setup and the client will take care of funding it. After all, it’s a way to save a little cash. But what if the client doesn’t follow through? This is where I have my concerns.

Here’s a story that further underscores the problem.  Several lawyers each individually came up with a limited scope business model and they all happened to practice in the bankruptcy arena. Interestingly enough, these guys each decided they would limit their scope to helping clients fill out and file the appropriate paperwork, at which point each would take their leave.  In time, various judges had had enough. The long and short of it was that the clients who had received the limited scope service were woefully unprepared to move through the process and were being harmed as a result.  The judges apparently felt they had no alternative other than putting a stop to what these attorneys were doing.

When I think about the language found in our Rules, I can appreciate how the phrase “reasonable under the circumstances” anticipates there may be times where limiting scope rather significantly may be entirely appropriate. However, even in those rare situations, the duty to provide competent representation remains in effect. Here’s what I’m getting at, a lawyer may limit scope of representation, but that doesn’t mean you can skip making certain your client is fully informed. You are the lawyer in the relationship and you have knowledge that the limited scope client does not. Knowledge that the client often must know in order to make informed decisions about how to proceed post your involvement.

For instance, in the above estate planning example, an attorney may limit scope to preparing documents, but when doing so the client should still be informed of the legal consequences if the funding never occurs or isn’t done correctly.  By the same token, the mistake the bankruptcy guys made was in not informing their clients about the process that was to come. At a minimum, those clients should have been made aware of the importance of the creditors meeting and perhaps instructed as to the basics of how to prepare for that.

Finally, let’s pull Rule 1.4 Communication into this discussion. How can a limited scope client make informed decisions about their legal matter, even one as simple as should I try to find a way to hire you or another attorney to go a bit further, if they have no idea about the legal ramifications of their messing something up down the road? You have the law degree. You know what’s coming and these clients often haven’t a clue. What they do have is a very real legal issue and limited funds to deal with it. Limited scope representation may be their only hope. Feel free to jump in, if and when the opportunity to provide limited scope representation arises. Just know that once you agree to go down this road, Rule 1.1 Competence and Rule 1.4 Communication will be in play. Limiting your role is fine. Just make certain you don’t similarly limit your advice. And because that’s where potential trouble lies, as I shared at the beginning of this post, making sure such advice is always confirmed in writing would be a really good idea.

All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.

This entry was posted in Guest Bloggers and tagged Mark Bassingthwaite. Bookmark the permalink.

Enjoy our blog posts with lunch! Enter your email address and we'll send you an email each time a new blog post is published. BONUS: You will also receive the Embracing Change white paper immediately after subscribing.

Comments are closed automatically 60 days after the post is published.