AuthorAngelica, Peter C.

Introduction 1204 I. Understanding Limited Scope Representation 1209 A. Defining Limited Scope Representation 1209 B. What is Unique about Limited Scope Representation Where an Appearance is Made? 1212 II. When Does an Attorney Have to Disclose the Limitation on Representation? 1213 A. To A Client? 1214 i. Model Rule 1.2(c)'s Informed Consent Requirement 1214 ii. Model Rule 8.4(c)'s Prohibition on Dishonest, Fraudulent, or Deceitful Conduct 1217 iii. Model Rule 8.4(d)'s Prohibition on Conduct Prejudicial to the Administration of Justice 1218 B. To the Court? 1220 i. Comparison to Disclosure in the Context of Ghostwriting 1220 ii. Obligations Under the Model Rules 1222 iii. The Court's Inherent Authority to Require Disclosure 1225 iv. Could Disclosure to a Court be Done Ex Parte? 1226 III. When Can an Attorney Withdraw from the Limited Scope Representation? 1228 A. When the Agreed-Upon Limited Services Have Been Provided 1231 B. When Equitable Factors Do Not Preclude Withdrawal 1231 C. When the Attorney Does not Go Beyond the Agreed-Upon Limited Services 1232 IV. Does Withdrawing from Representation if a Client Rejects a Reasonable Settlement Offer Violate a Client's Right to Settle? 1233 A. Understanding the Right to Settle 1234 B. Violations of a Client's Right to Settle 1235 i. When the retainer agreement "impermissibly burden[s]" the client's right to settle 1235 ii. Loss of Control over the Decision to Settle 1237 iii. When a lawyer deprives the client of information necessary to make a reasonably informed decision about the objective of the case 1238 V. Is it Reasonable to Limit the Scope of Representation Based on Rejection of an Attorney-Recommended Settlement Offer? 1240 A. Limitation(s) on Representation Under the Model Rules 1241 B. Additional Justifications for the Reasonableness of Limited Scope Representation 1245 Conclusion 1248 INTRODUCTION

Consider the following: you are a legal aid lawyer working in housing court. Faced with an overwhelming number of cases, (1) you are further burdened with the difficult task of triaging your workload. (2) But for your representation, your clients facing eviction would represent themselves in court and defend their cases as pro se litigants. (3) This is not ideal; pro se litigants have a significantly lower chance of receiving favorable rulings in housing court, (4) or for that matter, in any other kind of case they litigate. (5)

Knowing that you do not have capacity to fully represent each client through trial, you consider offering some clients limited scope representation. (6) The terms of the limited scope representation would be simple: rather than represent a client for the entire case, you propose to make an appearance for them and represent them through settlement. If the client receives and rejects a settlement offer that you determine to be reasonable given the facts of the case and your experience, you have the option of withdrawing from the case.

This arrangement can be advantageous for both a limited scope lawyer and her client. Withdrawing would allow a former client to continue litigating the case pro se to pursue their desired outcome, separate from the deal that has been offered. Withdrawing would also spare the limited scope lawyer from taking time to prepare for a trial where the outcome will likely be less favorable than the offer, or even if it were more favorable than the offer, it may not be worth all the extra effort. This allows the limited scope lawyer to work for clients who are ready and willing to accept reasonable settlements. In review, this model of representation allows lawyers to take on more cases, (7) reach more favorable outcomes, (8) and increase access to justice. (9)

This hypothetical raises several questions regarding a limited scope lawyer's obligation to her client, the court, and herself as an advocate. First, do rules of professional conduct allow this kind of limited scope representation? (10) In particular, when would the lawyer have to tell her client, the court, or opposing counsel of her intention to limit the scope of your representation, if she must at all? Second, is conditioning a lawyer's representation on the client's acceptance of an attorney-recommended settlement ethical under rules of professional conduct, given that the threat of withdrawal will pressure clients to accept settlements that they would otherwise reject, arguably encroaching on their right to make key decisions regarding the representation? (11) Lastly, is this arrangement desirable for the limited scope lawyer or the client? Just because a lawyer can offer limited scope representation, should she? Is having "half a lawyer better than no lawyer?" (12)

This Note addresses ethical issues posed by one possible way of serving the unmet needs of civil litigants. (13) To this end, this Note draws on Model Rules of Professional Conduct ("Model Rules"), versions of which have been adopted in all 50 states and a number of U.S. territories. (14) This Note also utilizes various other sources, such as court opinions, ethics committee opinions, whitepapers, comments to the Model Rules, and law review articles, all of which influence courts. (15) Ultimately, this Note concludes that the form of limited scope representation it addresses can be undertaken consistently with the professional conduct rules.

This Note aims to advance discussion of an underexplorcd aspect (16) of limited scope representation in the legal services context. (17) Others have examined limited scope practices such as ghostwriting (18) and pro se clinics, (19) and have discussed other ways that overburdened public defenders can meet their ethical obligations. (20) However, limited scope representation where a lawyer makes an appearance in court on behalf of an indigent litigant poses unique ethical challenges that have not been fully examined. (21) The question is important now given the increased access to justice gap in the wake of the COVID-19 pandemic. (22) Furthermore, though limited scope representation is used to assist indigent litigants facing housing cases, (23) consumer debt actions, (24) federal civil litigation, (25) and family court matters, (26) many courts and attorneys remain ambivalent about the practice. (27) In fact, a 2017 survey identified lack of clarity around ethics obligations as the principal reason why some attorneys do not unbundle their services. (28)

This Note is structured in five parts. Part I provides background on limited scope representation. (29) Part II examines whether the limited scope attorney would have to disclose the terms of the representation--that is, that the representation is conditioned on acceptance of a reasonable settlement--to the client, court, and opposing counsel. (30) Part III addresses whether a limited scope representation structured around an agreed upon outcome violates the client's right to settle. (31) Part IV assesses when an attorney could withdraw from the representation. Part V explores whether the structure of the limited scope representation is reasonable, and the value of limited scope representation as a whole. (32)


    Before examining the ethics of the limited scope arrangement, it is important to explore how limited scope representation works on a day-today basis. This Part provides a brief introduction to the practice of limited scope representation. Section LA defines limited scope representation. Section I.B notes the unique ethical challenges associated with limited scope representation where an appearance is made.

    1. Defining Limited Scope Representation

      Limited scope representation is a broad term that refers to various discrete services that lawyers provide clients. (33) Forrest Mosten, who has written extensively on the topic of limited scope representation and is one of its leading proponents, (34) described limited scope representation as providing at least one of a panoply of services: "(1) gathering facts, (2) advising the client, (3) discovering facts of the opposing party, (4) researching the law, (5) drafting correspondence and documents, (6) negotiating, and (7) representing the client in court." (35) Limited scope representation can also involve limiting the time period of the representation to a specific portion of a given matter or a certain number of hours. (36) As a result, limited scope representation is also referred to as "unbundled legal services" (37) or "law a la carte." (38)

      Lawyers in private practice and legal services (39) offer different kinds of limited scope representation. (40) Specifically, limited scope representation encompasses everything from lawyer for a day programs, (41) legal hotlines, (42) lawyers advising clients in courthouse hallways, (43) prefiling counseling, (44) and other kinds of representation. (45) One of the most discussed forms of limited scope representation is called "ghostwriting." (46) Ghostwriting is the practice of an attorney drafting pleadings or other documents for a client and providing legal advice without ever appearing on record or formally introducing herself as representing the client. (47) Not all states allow attorneys to provide ghostwriting services to clients, as doing so can insulate the ghostwriting attorney from discipline for ethics violations. (48)

      In general, Model Rule (MR) 1.2(c) explicitly allows for lawyers to limit the scope of their representation. (49) However, many other rules of professional conduct do not reflect how a limited representation might change a lawyer's ethical obligations under those rules. (50) For example, limited scope representation implicates MR 1.1 's competence requirement; (51) MR 1.3's diligence requirement; (52) MR 1.6's confidentiality requirements; (53) MR 1.16's guidance on withdrawal; (54) MR 3.3's candor concerns; (55) MR 6.5's provisions regarding limited scope representation provided by legal aid organizations; (56) and MR 8.4's...

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