Limiting the Scope of Representation Rule of Professional Conduct 1.2(c)

Let’s start with the rule. RPC 1.2(c), effective January 1, 2010 now provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent”

What’s are examples of limiting the scope of services?In the broad sense, anything less than full representation on the legal problem of client is a limitation in scope. Examples: A client comes in and relates facts that show that she is being terribly abused by her husband. She wants the abuse to stop and she wants a divorce. Our Program is providing representation in orders of protection but is not doing divorces. A Program runs a hotline over the telephone. Callers maybe seeking a variety of legal services from just having a question answered or obtaining some advice to seeking full representation. Hotline attorneys answer questions, provide advice, and if the legal problem is within a particular office’s priorities, refer the case to the office.

HHotline attorneys can provide a number of limited type of services: - Provide a legal opinion on the success or failure of what the client seeks to do. - React to provisions of a document having it either faxed to them or listening to what the client reads over the phone. - Advise the client as to the agency or court processes and what they must do to conduct their hearing pro se. - Coach the client on presenting a case to an agency or court having obtained facts relating to possible evidence. - Research the law on a particular question and communicate the finding to the client orally and/or by mail. - Send copies of statutes, regulations, excerpts from decisions, and various secondary sources to the client. - Send copies of model pleadings or motions. - Assist client with the drafting of a document or court paper.

AlAll of the activities described with respect to hotlines but instead provided in person at an office. WWriting a document (including a motion, a response or a brief) for the client. Writing a letter to be signed by the client. PrProviding language to the client to include in a document. PrProviding the client with a redacted document created by the Program used in another case. RRepresenting a client on a distinct portion of a litigation, such as preparing pleadings, performing or responding to discovery, taking depositions, moving for summary judgment, responding to motions, etc. This limited representation is accepted in many states by rules that attempt to establish procedures that attorneys follow.

The need for limited representation during litigation is a product of the increasing numbers of pro-se litigants who find themselves in court but can’t afford representation. Providing representation on a discrete part of a case is recognized as valuable assistance to the litigant and the court. A number of states have formulated rules of ethics and procedure to guide attorneys regarding the following issues: - Appearances - Understanding of the attorney and the client of the scope of the particular limited representation - Withdrawal after the designated limited representation ends - Who must be served with court filings. - Extent of factual investigation in preparing documents. - Identification of the attorney when a document is prepared. - The ethical rules regarding communication with the client who is represented by a limited scope attorney.

Efforts in Illinois Initiative by Lawyers Trust Fund. Establishment of Joint Task Force on Limited Scope Representation from Illinois State Bar Association, the Chicago Bar Association, and the Illinois Judges Association. Public Roundtable Forums. Final Report. Submission to the the ISBA, the CBA and the IJA for approval and submission to the Illinois Supreme Court for adoption.

Summary of Proposals - Amendment to Illinois Supreme Court Rule 13 providing that an attorney may file a limited appearance in a case after entering into a written agreement with the client of the scope. The appearance would be on a designated form. - Amendment to Supreme Court Rule 13 that would establish a designated form for withdrawing after the limited representation has concluded. - Amendment to Supreme Court Rule 11 regarding service of papers other than summons providing that service be made on the limited scope attorney when the limited appearance is filed and until there is withdrawal on matters within the stated scope of the limited representation. - Amendment to Supreme Court Rule 137 regarding signing of filed documents and sanctions providing that an attorney can draft a pleading or document that would be signed by the client and that the attorney may rely on the client’s representation of the facts unless the attorney knows them to be false.

- (Rule 137, continued) - The Committee did not reach a decision whether such pleadings and documents should be signed by the attorney and has submitted drafts both with and without the requirement. - Amendment to RPC 4.2 regarding communication with a client who is represented by an attorney on a limited basis. The amendment would consider the client to be unrepresented and not subject to RPC 4.2 unless opposing counsel had notice of the limited representation generally by the filing of the Limited Scope Appearance set forth in the amendments to Illinois Supreme Court Rule 13.

Lawyer at or in the court (Help Desks)– an arrangement with a local court whereby staff are present at court sessions and their availability for consultation is made known to parties either by the court, the clerk, or by appropriate signage outside the courtroom. - Domestic Violence. - Evictions. - Mortgage foreclosures. - Family. - Guardianships. - Expungements. Services provided can range from just providing general information on the particular process of the court and what will occur in court to providing specific advice to negotiating with opposing counsel to stepping up and appearing for the client before the court.

Ethical Considerations

Can you do these limited representation activities? Pretty obviously, yes. RPC 1.2(c) is broad: “A lawyer may limit the scope of the representation....” Comment 7 to RPC 1.2 states that “the Rule affords the lawyer and the client substantial latitude to limit the representation....” However, there are constraints: Rule 1.2(c) provides that limiting services must be “reasonable under the circumstances and the client gives informed consent.” In addition there is the issue of conflict of interest with a present or former client.

Threshold Question – Are we representing the client such that an attorney-client relationship is formed? If not, RPC 1.2(c) probably doesn’t apply. Illinois court decisions have found that an attorney-client relationship can be formed during the initial contact between the layperson and the attorney if it is the individual’s subjective belief that he or she is consulting the attorney as an attorney with the intent to seek legal advice or other legal representation for him or herself and the client communicates information regarding his or her legal problem to the attorney. See, Herbes v. Graham, 180 Ill. App.3d 692 (2 nd Dist. 1989), King v. King, 52 Ill. App.3d 749 (4 th Dist. 1977), Morris v. Margulis, 307 Ill. App.3d 1024 (5 th Dist. 1999). Two parts: (1)The individual’s subjective belief the he or she is seeking legal advice or representation; (2) the person communicates information regarding his or her legal problem.

Problem: Legal service Program X operates in conjunction with the court in Y County, a mortgage foreclosure help desk. The court tells defendants that Program X attorneys, who include volunteers, are available to provide general information about the mortgage foreclosure process and what documents to file. Attorneys meet with clients who choose to take advantage of the offer and do not obtain the client’s name. The attorneys describe the foreclosure process including the foreclosure time line, the rules regarding answers to foreclosure complaints and other general information questions. Is RPC 1.2(c) applicable?

What if the attorneys review the foreclosure complaint? What if they obtain the foreclosure defendant’s name? What if they find out the plaintiff’s name and check it against the note attached to the foreclosure complaint looking for a capacity defense? What if the court informs defendants of the availability of the desk but says that the attorneys are only supplying legal information and are not providing legal advice or there is a sign by the help desk that states the same?

Constraint 1 – Limitation is reasonable under the circumstances Comment 7 to RPC 1.2 in essence provides that the limited service must be sufficient to meet the limited scope. It references RPC 1.1 on Competence: “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Considerations (Especially regarding hotlines) Is the service or legal issue within the competence of the attorney? Is the client able to understand the advice or limited service? Are the facts and law just too complex to render the limited legal service? Issue in the context of legal services and pro bono clients is complicated by the fact that there is no other alternative for the client to obtain limited or any representation. Nevertheless, the constraint seems to boil down to that the representation must be competent and the legal service must be meaningful to the client.

Problem: A hotline attorney is speaking to a caller. The caller has a very difficult time providing much information about his problem: whom the problem is with, and even personal facts regarding marital status, and financial eligibility information. The attorney with difficulty has discerned that the problem probably involves some aspect of what appears to be a complex probate issue? Can the attorney provide the limited service or any service? What if the client can articulate the problem, but the legal question involving probate is very complex and neither the attorney, nor her colleagues, has experience in this legal area?

Constraint 2 – The client gives informed consent. “Informed consent” is a defined term. RPC 1.0(e) provides that the term “denotes the agreement by a person to a proposed course of action after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of action.” Comment 7 to RPC 1.0 states that “[o]btaining informed consent will usually require an affirmative response by the client.... In general, a lawyer may not assume consent from a client’s...silence. Consent may be inferred, however, from the conduct of a client... who has reasonably adequate information about the matter.”

Problem: Program X operates a hotline. It accepts calls from throughout the Program’s service area. Depending on what the client states that he or she is requesting help upon, the hotline attorney can either provide advice, provide information, or refer the case to an office for full representation depending on the type of case that the office will provide representation. What must the hotline attorney convey to the client if the client is seeking full representation and the hotline attorney can only provide advice? What if the caller says that advice is inadequate?

A caller calls a hotline and says that he is thinking of suing his landlord because the landlord four years and 345 days ago unlawfully entered his property without permission and damaged his kitchen sink. The applicable statute of limitations is five years for a suit for property damage because of trespass. The caller wants representation in bringing his suit. The attorney informs the caller that Program X doesn’t represent clients in damages cases and that the caller’s facts probably wouldn’t support a lawsuit. Anything else the attorney should tell the caller?

Problem: Program Z runs a lawyer in the court program with County A’s court in which the court announces to FED defendants that Program Z lawyers are available for consultation and perhaps representation. The attorney sits down with the client, reviews the court file, and seeks to determine if there is a defense. If there is no defense, often the case in a non-payment of rent eviction, the attorney will not appear in court on behalf of the client. What steps can the attorney in this situation take to meet the informed consent requirement? How about the use of a retainer agreement that states the limitation?

Constraint 3 – Conflict of Interest In any situation other than when the attorney provides only legal information and obtains no personal facts and provides no legal advice that requires applying legal knowledge to particular facts, the attorney is subject to RPC 1.7, 1.9 and 1.10 regarding conflict of interests. In the lawyer in the court situation, help desk, or hotline that requires checking for a conflict by accessing the Program’s client data base either directly or by telephone. However, there is now a limited exception to the conflict checking obligation in RPC 6.5 which is the next topic of this presentation.