Limited scope representation What judges need to know about unbundling

What is unbundling? Limited scope representation (unbundling) is occurs when an attorney and a client agree that the attorney will perform some, but not all, aspects of a legal matter.

Types of Unbundling Discrete Task or Ghostwriting: when an attorney provides consultation and legal advice, document review, or ghostwriting (drafting). Colo. RPC 1.2(c) C.R.C.P. 11 and C.R.C.P. 311 Limited Appearance: when an attorney enters an appearance on behalf of a client in court or at mediation. C.R.C.P. 121 Discrete tasks can include: Gathering facts Advising clients on law and procedure Coaching Facilitating discovery Researching the law Drafting correspondence and documents Negotiating Preparing and/or participating in mediation Representing in court

Discipline or Malpractice Unbundling not seen as problem: Office of Attorney Regulation National Organization of Bar Counsel (NOBC). Malpractice Carriers People v. Jerry L. Stevens, 10PDJ002 (O.P.D.J. 2010): Attorney tried to defend his inaction on a case by saying the case was unbundled. However there was no agreement between attorney and client and OARC did not feel it was actually an unbundling situation.

Need for unbundling burden on judges and court staff Number self-represented litigants (FY 2015) 69,951 parties in DR cases in CO 75% parties did not have attorney enter appearance Respondents in DR, District Civil, and County Civil 89% parties did not have attorney enter appearance Statistics from State Court Administrator’s Office: “Cases and Parties Without Attorney Representation in Civil Cases FY 2015* 12th JD- 722 parties in DR cases; 623 with no attorney; 86%. 2nd JD- 9,012 parties in DR cases; 7,359 with no attorney; 82%. 4th JD- 12,114 parties in DR cases; 9,321 with no attorney; 77% 1st JD- 6,867 parties in DR cases; 5,100 with no attorney; 74%. 18th JD- 10,766 parties in DR cases; 7,491 with no attorney; 70%.

Need for unbundling burden on judges and court staff Self-represented litigants Uniformed Unprepared Overwhelmed Judges and court staff (including sherlocks) can’t provide legal advice

Need for Unbundling For attorneys and clients Cost for full-service legal representation Growing demand by the client for control over their legal issues Changing practice of law *Some information provided by IAALS, Honoring Families Initiative, Unbundling Legal Services, A Toolkit for Court Leadership (October 2015)* Costs: Most people do not qualify for pro bono or legal aid assistance. Client control: public has access to a lot of legal information, including forms online and self-help centers.. Public wants to leverage their resources and only pay for the services they need. Changing Practice: As the demands of the marketplace change, so does the way attorneys practice law.

Rules Colo. RPC 1.2(c) and Colo. RPC 1.0(e) = permission to unbundle C.R.C.P. 11(b) and 311(b): Pleadings C.R.C.P. 121, § 1-1(5): Court appearance C.A.R. 5(e): Colorado appellate rule D.C.Colo.Latty R2 and R5: US District Court

Colorado rules of professional conduct Colo. RPC 1.2(c) Permits limited scope representation Reasonable under the circumstances. Informed consent of client. Agreement should be in writing, signed by both parties. Informed Consent: Colo. RPC 1.0(e), agreement by person to proposed course of conduct after the lawyer has communicated adequate information and explanation about the risks and reasonable alternatives to the proposed course of conduct.

Informed consent "Informed consent" agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Colo. RPC 1.0 (e)

Drafting Pleadings (Ghostwriting) Ghostwritten pleadings must comply with C.R.C.P. 11(b) and 311(b): Must include name, address, telephone # and bar # Certify that the pleading or paper is: Well grounded in fact based on reasonable inquiry. Warranted by existing law or a good faith argument for extension. Is not made for an improper purpose, or to harass, delay, etc. Exception for pre-printed judicial (JDF) forms Not an entry of appearance Forms are included in the material in the Unbundling booklet JDF 630 (civil), JDF 1334 (domestic) – Notice of Limited Appearance by Attorney with Consent of Pro Se Party JDF 631 (civil), JDF 1335 (domestic) – Consent to Limited Appearance by an Attorney JDF 632 (civil), JDF 1336 (domestic) – Notice of Completion by Attorney under C.R.C.P. 121

Colorado rules of civil procedure 121 §1-1(5) Limited representation of a pro se party in a court proceeding at the request AND with consent of client. File notice of limited appearance prior to or simultaneous with proceeding. (JDF 630, 1334/1335) Attorneys role terminates without leave of court and upon filing a notice of completion. (JDF 632, 642, 1336) Prior to the addition of C.R.C.P. 121 § 1-1(5), if an attorney filed an entry of appearance, signed a pleading, or appeared in a court proceeding, the attorney, without substitution of counsel, was required to file and serve a motion to withdraw from the case. Amended rule change effective October 20, 2011.

Colorado rules of professional conduct Limiting scope ≠ limiting obligations under Rules of Professional Conduct or Rules of Civil Procedure Limited scope = Attorney/client relationship CBA’s Ethic Opinion 101 Rules of Professional Conduct 1.1 Competence Requires the legal knowledge, skill, thoroughness and preparation reasonably necessary. 1.3 Diligence Lawyer shall act with reasonable diligence and promptness in representing a client. 1.4 Communication 1.4(a)(2) reasonably consult with client about the means by which the client’s objectives are to be accomplished. 1.5 Reasonable fee 1.5(b) The basis or rate of the fee and expenses shall be communicated to the client in writing. INCLUDE scope of limited representation.

Colorado appellate rule 5(e) C.A.R. 5(e): limited scope representation in the Colorado Court of Appeals and Colorado Supreme Court: request and with the consent of a pro se party, terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance. JDF 640 (appellate) – Notice of Limited Appearance by Attorney with Consent of Pro Se Party JDF 641 (appellate) – Consent to Limited Appearance by an Attorney JDF 642 (appellate) – Notice of Completion by Attorney under C.R.C.P. 121 C.A.R. 5 €Amended rule change effective October 11, 2012.

United states district court for the district of Colorado D.C.Colo.LAttyR5 (a)(2): Unbundling is allowed when there is a court order granting permission. the scope of limited representation must be defined in motion and any change to scope must be approved again by court. Unbundling lawyer must file a motion to withdraw after completing limited representation D.C.Colo.LAttyR5 (a)(2) states: “an attorney may provide limited representation to an unrepresented party or an unrepresented prisoner in a civil action by order granting a motion which defines the scope of limited representation with reasonable particularity and certifies the approval of the unrepresented party or unrepresented prisoner. Any change in the scope of limited representation must be approved by the court.” Court approved forms available Adopted December 1, 2016 This is a significant change. Historically the federal courts explicitly rejected Colorado state court’s authorization of limited scope representation calling ghost writing a “deception of the court.” Johnson v. BCCC Fremont, 868 F.Supp. 1226 (D.C. Colo. 1994) Next, the rules were amended to allow ghostwriting only in prisoner rights cases when specifically requested by an attorney and granted by the court.

United States District court for the district of Colorado D.C.Colo.LAttyR5 (a)(3): entry of appearance or initial pleading must contain: the identity of the party for whom the appearance is made; the firm name, office address, telephone number, and primary CM/ECF e-mail address of the attorney; and the certification of the attorney that the attorney is a member in good standing of the bar of this court.

Judicial Leadership on unbundling Securing access to justice is a fundamental goal and responsibility of judicial leadership. Judicial support is absolutely essential for unbundled legal services to take hold. Unbundling has been increasingly used and accepted in the last several decades. Unbundling can increase the number of prepared litigants and result in more available docket, court staff, and judge time.

Judicial Leadership on Unbundling Colorado Supreme Court supports unbundling Assure lawyers that the court will allow lawyers to withdraw after completion of limited scope representation. Refer lawyers to the court approved forms Educate the public about the availability of unbundling. Educate court staff about unbundling See Colorado Code of Judicial Conduct Rule 2.6, comment 2: Steps permissible in ensuring self-represented litigants the right to be heard

Judicial Leadership on Unbundling Work with CBA’s Modern Law Practice Initiative to schedule an unbundling presentation in your area, including one specifically geared to young lawyers. Work with local bar associations and local access to justice committees to develop lists of lawyers offering unbundled services, including encouraging use of CBA’s Find-a-Lawyer. Encourage self-represented litigant coordinators (sherlocks) and family court facilitators, when appropriate, to refer self-represented litigants to lawyers providing unbundled services.

Tips for judges from judges Communication by judge With pro se party? With limited scope attorney? Judge must clarify scope of limited representation with pro se party and attorney Judge must ensure notices of hearing, decisions, etc., are sent to correct party

Tips for judges from judges Communication with attorney providing full representation Ensure he or she knows scope of limited representation Opposing attorney must communicate with limited scope attorney on issues of limited representation Opposing attorney must communicate with pro se attorney regarding other issues.

Discussion What is going well with unbundling? What is not going well with unbundling?