“Adding Limited Scope Representation to Your Practice: The Rules and Realities” Omaha Bar Association’s Innovations in the Legal Practice December 7, 2018 Scott V. Hahn, Associate Attorney, Hightower Reff Law, Vice-Chair of the Limited Scope Section of the Nebraska State Bar Association, and Member of the Nebraska Supreme Court’s Self-Represented Litigation Committee

Limited Scope Representation (LSR) in Nebraska: What is it? The client and lawyer select certain services that the lawyer will provide Lawyer then works on a discrete task: the process of taking a client’s legal matter and breaking it down into separate tasks The client pays for the specific tasks only, either based on an hourly fee or on a flat fee, typically without a large retainer Client remains pro se throughout the process When the specific task is complete, the lawyer’s work is done Also known as unbundling or discrete task representation

Limited Scope Representation: What it’s NOT Limited liability Second class practice Unethical Just for poor people Just for attorneys who can’t find clients for full representation

Examples of LSR-Type Services Document drafting Standalone estate documents (Wills, Trusts, etc.) Complaints, Answers, etc. Settlement Agreements Document Review Mediation Agreements Divorce Decrees Pre-Marital Agreements In-Court Representation Obtaining a Protection Order Temporary Hearings Show Case/Contempt Hearings Preparing exhibits Organizing discovery materials Endless opportunities

LSR in Nebraska – THE RULES 3-501.2(b)-(e): Scope of representation 3-501.1: Competence 3-501.3: Diligence 3-501.4: Communication with client 3-501.5: Fees 3-501.6: Confidentiality of information 3-501.7 through 10: Conflict of interest 3-504.2: Communication with person represented by counsel 3-506.1: Voluntary pro bono service 3-506.5: Nonprofit

§ 3-501.2(b): Scope of Representation Neb. Ct. R. of Prof. Cond. § 3-501.2: Scope of representation and allocation of authority between client and lawyer. (b) A lawyer may limit the scope of his or her representation of a client if the limitation is reasonable in the lawyer’s judgment under the circumstances and the client gives informed consent to such limited representation.    [6] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the 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. See Rule 1.1.

§ 3-501.2(b): Scope of Representation LSR is not for all clients, all lawyers or all legal problems. Factors to consider in determining whether LSR is appropriate under the circumstances include: The client must have some degree of emotional detachment, basic intelligence level, and some degree of self-motivation. The matter: the importance of the interests at stake, the complexity of the matter, the amount of discretion a judge or other decision maker will exercise The judge: how helpful is the judge in the process, i.e. level of patience? Will the judge explain the process, i.e. the order the testimony will be taken, how a party can answer a question, etc.

§ 3-501.2(b): Scope of Representation Whenever a lawyer limits the scope of the engagement it is critical to define the scope and memorialize the attorney client relationship. Because client’s “misremember” things, a written engagement document allows lawyers to better respond to malpractice claims.

§ 3-501.2(b): Scope of Representation Lawyers should redefine the scope of the engagement between the lawyer and the client if both parties agree that the original terms of the engagement agreement no longer adequately defines the duties in which the lawyer has been engaged to work on behalf of the client. It is very important to watch out for the “scope creep” Constantly memorialize in writing what you are doing for the client if that changes between the start of the LSR and where you are at with a client in a case. Don’t worry about more paper, the more the better when it comes to a meeting of the minds of what exactly you are representing the client on.

§ 3-501.2(c): Scope of Representation Neb. Ct. R. of Prof. Cond. § 3-501.2: Scope of representation and allocation of authority between client and lawyer. (c) A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are “Prepared By” and the name, business address, and bar number of the lawyer preparing the same. Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case. Any filing prepared under this rule shall be signed by the litigant designated as "pro se," but shall not be signed by the lawyer preparing the filing.

§ 3-501.2(d): Scope of Representation Neb. Ct. R. of Prof. Cond. § 3-501.2: Scope of representation and allocation of authority between client and lawyer. (d) If, after consultation, the client consents in writing, a lawyer may enter a “Limited Appearance” on behalf of an otherwise unrepresented party involved in a court proceeding, and such appearance shall clearly define the scope of the lawyer’s limited representation.

§ 3-501.2: Scope of Representation and Rules of Pleading § 6-1109(i) Neb. Ct. R. of Prof. Cond. § 3-501.2(e): Scope of representation and allocation of authority between client and lawyer and Neb. Ct. R. Pldg. § 6-1109(i): Pleading, special matters Upon completion of “Limited Representation,” the lawyer shall within 10 days file a “Certificate of Completion of Limited Representation” with the court. Copies shall be provided to the client and opposing counsel or opposing party if unrepresented. After such filing, the lawyer shall not have any continuing obligation to represent the client. The filing of such certificate shall be deemed to be the lawyer’s withdrawal of appearance which shall not require court approval.

§ 3-501.3: Diligence Neb. Ct. R. of Prof. Cond. § 3-501.3: A lawyer shall act with diligence and promptness in representing a client. Comment: A lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. …a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. COMMENT      [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.    [2] A lawyer's work load must be controlled so that each matter can be handled competently.   [3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.    [4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.    [5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).

§ 3-501.3: Diligence File Closing Letter: formally acknowledges that a legal matter has come to an end and is sent for the purpose of memorializing the conclusion of the matter. Serves to lessen any confusion that a lawyer is continuing any work on behalf of the client. Non-engagement Agreement: Sometimes it is necessary to disclaim in writing that an attorney client relationship has been formed, if a prospective client has reason to believe that they may have received legal advice from an attorney who is not acting as counsel.

§ 3-501.4(a): Communications Neb. Ct. R. of Prof. Cond. § 3-501.4(a): A lawyer shall (1) promptly inform the client of any decision or circumstances which require the client’s informed consent; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (4) May not require a lawyer to comply with reasonable requests for information from the client if the limited scope agreement is clear enough that the lawyer is not providing information on certain areas of the representation, thus the limited scope nature of the representation- but must make sure your fee agreement is clear- we will see an example later.

§ 3-501.5(b): Fees Neb. Ct. R. of Prof. Cond. § 3-501.5(b): The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation… Critical to define the scope of the engagement and memorialize the attorney client relationship Client’s “misremember” things. Written engagement documents allow attorneys to respond to malpractice The same necessity that applies in any other attorney-client relationship.

§ 3-501.6: Confidentiality of Information Neb. Ct. R. of Prof. Cond. § 3-501.6: The lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is [otherwise permitted in the Rules]. COMMENT      [1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients. Former Client    [17] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

§ 3-504.2: Communication with Person Represented by Counsel Neb. Ct. R. of Prof. Cond. § 3-504.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Comment [4]: This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation Comment [10]: In the event an “Entry of Limited Appearance” is filed, opposing counsel may communicate with such lawyer’s client on matters outside the scope of the limited representation, and by filing such limited appearance, the lawyer and the client shall be deemed to have consented to such communication. When you’re on the other side of a limited scope client, what are your duties and limitations as it relates to communication with the limited scope client? Example A: if you have prepared a complaint for dissolution of marriage for limited scope client, you have used the “prepared by” signature block and noted yourself as a limited scope attorney. You have not necessarily filed an entry of limited appearance , because it’s not required unless you appear in court. By the nature of preparing a limited scope complaint, opposing counsel may contact limited scope client on any issues. Example B: you were hired by limited scope client to prepare necessary pleadings for a temporary hearing; therefore, you file (on a limited scope basis) a motion for temporary order and an affidavit- with your limited scope “prepared by” signature block. Your agreement with the client also provides that you will represent the client at the actual temporary hearing. You will duly file your entry of limited appearance and will have noted that your representation is limited in nature to represent limited scope client at the temporary hearing only. After filing the motion for temporary order, opposing counsel calls you and asks where are your clients outstanding discovery responses. You can confidently tell opposing counsel that you’re representation is limited in nature to the temporary pleadings and hearing only and invite the opposing counsel to contact your client directly as the discovery is outside the scope of your representation with the client.

THE REALITIES OF LSR IN NEBRASKA: Why should attorneys offer LSR? Expand your client base. Convert unmet legal needs into practice opportunities (numerous LSR clients convert into full-scope clients if/when the situation calls for it) Increase the volume of work for your office by specializing in one or more types of discrete tasks, such as protection orders or show cause proceedings Clients are generally happier because they are paying less Consider the large volume of clients who do not qualify for legal aid, but who also do not have thousands of dollars for a retainer. Remember…LSR clients usually are not “full service” clients looking to save money. Usually they are nobody’s client looking for affordable legal help. Increases public access to affordable legal services Might use it for aspiration of pro bono work Beneficial for the bench and efficiency of the judicial system

ANY MORE QUESTIONS!? Make sure to check out the updated LIMITED SCOPE REPRESENTATION IN NEBRASKA – FAQ FOR LAWYERS. Also just approved by the Self-Represented Litigation Committee of the Bar Association. Located on the Nebraska Supreme Court website at the following address: https://supremecourt.nebraska.gov/self-help/limited-scope-representation- nebraska-faq-attorneys.