Winter 2010-#9. Unbundling Legal Services: Delivering What Your Client Wants at a Price She Can Afford.

• Author: By Mary C. Ashcroft, Esq.

Vermont Bar Journal

2010.

Winter 2010-#9.

Unbundling Legal Services: Delivering What Your Client Wants at a Price She Can Afford

THE VERMONT BAR JOURNALVolume 35, No. 4Winter 2010Unbundling Legal Services: Delivering What Your Client Wants at a Price She Can AffordBy Mary C. Ashcroft, Esq."I can't afford a retainer, but can you just look over this agreement and tell me if it's OK? I'll pay you for your time."

That is a question I encountered a few years back in my private practice. It seemed simple: give a client an hour of my time, perform a discrete task, charge a small fee (or not), then send her on her way.

It is not surprising that I received this request, and more like it since. Pro se litigants use the do-it- yourself approach to home remodeling and auto repair, so why not access the courthouse the same way? The internet arms them with forms, statutes, and advice columns. Accurate or not, this flood of information both empowers and confuses.

So I did the consultation, reviewed the stipulation, and charged a minimal fee. The experience left me with a vaguely uneasy feeling that I might have done a favor, but had I done enough?

New limited appearance rules promulgated by the Vermont Supreme Court, along with changes in the ethical rules, may help answer that question.

Limited Appearances Before Family, Superior, and Environmental Courts

The recent addition of Vermont Rule of Family Procedure 15(h) and permanent adoption of Vermont Rule of Civil Procedure 79.1(h) allow attorneys to enter a limited appearance in most family,(fn1)superior, and environmental(fn2) court cases. Both "unbundling" rules are a boon to attorneys willing to take part, but not all, of a case, allowing the attorney's talents to be targeted where most needed. Pro bono programs have long anticipated these rule changes to ease the task of recruiting volunteer attorneys.(fn3)

VRCP 79.1(h) was first adopted for a two-year trial period beginning April 14, 2006, and then was made a permanent rule change effective July 6, 2009. Although not widely used during the trial period, the rule "did prove effective in achieving its original purpose of providing the assistance of lawyers to courts and litigants at critical stages in trials or other proceedings and encouraging lawyers to take on pro bono representation."(fn4)

The family court unbundling rule at VRFP 15(h) is a newer addition, promulgated on December 10, 2009, to be effective on February 12, 2010.(fn5) With the huge increase in pro se litigants, particularly in family court, there is urgent need to have attorneys involved in at least part of the courtroom activity.

Both VRCP 79.1(h) and VRFP 15(h) have similar entry requirements for the attorney seeking to limit his or her appearance on behalf of a client. * First, the client must agree to the limited representation by the attorney, and that agreement must comply with the Vermont Rules of Professional Conduct.(fn6) While the representation agreement is not required to be in writing, the better practice would be to have at least a written checklist of what the attorney will and will not do, even, or perhaps especially, if the attorney is acting on a pro bono basis. Certainly, the attorney should have a conversation with the client clearly stating the limits of representation. This conversation would be minimal if the client were a knowledgeable consumer of legal services and familiar with the court system, but extended and simplified for those without such experience. * Next, the attorney must file and serve written notice of limited appearance "as soon as practicable prior to commencement of the appearance." The notice must contain the purpose and scope of the appearance with specificity. The attorney is still subject to the obligations of Rule 11, so must make some inquiry of the client as to the particulars of that portion of the case that the attorney is undertaking.(fn7) * Simultaneously with or shortly after the lawyer's entry of limited...