Proposed Rule on Limited Scope Representation
By Jim Calloway
Limited scope representation has been authorized under our Rules of Professional Conduct for some time. The Oklahoma Rules of Professional Conduct provide for this in Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer. Subsection (c) provides:
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
In this issue of the Oklahoma Bar Journal on page 307, you will find a notice and opportunity to comment on a proposed new district court rule. This rule was proposed by the OBA Access to Justice Committee. Other states have undertaken other rules and/or process changes to encourage limited scope representation. (This is also probably a good opportunity to reiterate this column reflects my personal thoughts and not any official policy of the OBA.) Some of you may have heard this practice previously referred to as unbundled legal services, but limited scope representation (LSR) is the preferred term today because it better describes the situation to potential clients and reflects the language of the rule.
There are likely few who would dispute that a lawyer could provide some limited scope services in regard to litigation, such as explaining how a particular court proceeding would work or advising an individual who had been served with process of his or her answer date and the necessity of filing an answer in a timely manner. Those actions would be considered a traditional method of dispensing legal advice.
The challenge occurs when a lawyer wants to assist the client with preparing documents that will be filed with the court.
Today there are many unlicensed and largely unregulated legal service providers offering legal document creation for consumers. Some of these are well-funded online legal document assembly providers.
Some of those services are even expanding by offering consultations about the documents with a lawyer in the customer’s state.
We have all seen the roadside signs offering flat fee legal document drafting at various intersections and along rural section line roads. Some lawyers may have even called the phone number on the sign and discovered the individual answering the phone clearly does not have a license to practice law in Oklahoma, but they have a computer.
As most judges can confirm, the area of do-it-yourself legal work and unrepresented pro se individuals appearing without counsel in court has certainly increased over recent years.
With an increasing number of people now appearing in court without legal counsel and with legal paperwork that has been drafted for them by some individual or machine, why are relatively few Oklahoma lawyers assisting these individuals by drafting quality documents for them? Who is better qualified and trained to do that work?
Based on anecdotal evidence as well as experience from other states, it is believed that these types of limited scope services are not frequently provided by Oklahoma lawyers for several reasons:
1) The method of appropriately and ethically providing these types of services does not appear to be clear, and few lawyers relish moving into uncharted territory, particularly on legal work that involves smaller fees. There are also concerns about liability.
2) Some courts and judges are skeptical about whether it is appropriate for lawyers to perform legal work in this manner and undisclosed ghostwriting has been criticized in a variety of court opinions.1 Let’s be candid. If the local judge thinks it is inappropriate for a lawyer to be involved with this activity, few local lawyers would want to question that conclusion.
3) Lawyers have traditionally viewed themselves as being full-service providers and many have not considered this alternative method of serving the public.
In the December 2016 Oklahoma Bar Journal, Tulsa attorney Blake M. Feamster authored “Ghostwriting: An Ethical Issue in the Evolution of the Legal Field”
where she discussed the history and case law related to limited scope representation. She noted:
Criticism of the practice of ghostwriting continued in subsequent federal court cases, but opinions varied on how the issue should be addressed in the absence of governing rules in a jurisdiction. One court, noting the lack of “any local, state or national rule regarding ghostwriting,” called for “local courts and professional bar associations to directly address the issue of ghostwriting and delineate what behavior is and is not appropriate.”
State bar associations and ethics entities across the country, as well as the American Bar Association (ABA), ultimately an-swered the call. The ABA, focusing on the need for pro se litigants to have access to the courts and to obtain help they would not otherwise be able to afford, fully endorsed ghostwriting in 2007. Some state and local bars follow this approach, but others require only limited disclosure or disclosure in cases of “substantial assistance,” while others flatly prohibit ghostwriting or require full disclosure.3 (Citations omitted)
Proposed new District Court Rule 33 is an improvement for all those involved. It can be the proverbial win-win-win.
1) Citizens who cannot afford full-service legal services can have more affordable access to quality legal advice and professionally drafted documents provided by a lawyer who complies with ethical standards of practice.
2) Judges will have clear guidance as to the interaction and assistance allowed between lawyers and pro se parties. Hopefully they will see an improvement in the quality of paperwork and also the approach utilized by unrepresented litigants.
3) Lawyers will be able to safely provide these limited scope services and compete with the unlicensed providers who are now doing so. Unlike the un-licensed providers, the attorneys will be bound by the Oklahoma Rules of Professional Conduct and its provisions to protect the public.
The first example that comes to mind when LSR is discussed is uncontested divorce cases. This is certainly a common need, but there are other appropriate situations. A lawyer might decide to have small claims classes or workshops where litigants are assisted with organizing the paperwork to be presented to the court and advised about the procedure, what witnesses are necessary for their matter and how they should comport themselves.
Times are definitely changing and change is often uncomfortable. We’ve seen news reports of a website
that contests parking tickets with no human intervention and reportedly has had some success doing so.
However, I think many lawyers, particularly those with practices in the more rural areas, will appreciate the opportunity to perform a service for local clients at an affordable rate and build a positive relationship so the client may return to them in the future for additional legal services.
Lawyers have to provide value. For example, what is the lawyer’s greatest value in assisting with a simple uncontested divorce? Is it explaining the process and the client’s rights, drafting the appropriate paperwork, completing a correct child support calculation, an agreed visitation schedule and any other required documents? Or is it scheduling a date and waiting in line at the waiver divorce docket to briefly examine the client on the factual basis for the decree? Both are valuable and some clients would not want to go to a court proceeding unrepresented. But if there was a need to reduce the cost of legal fees, clearly the advice and document drafting is more important than physical appearance at the waiver docket.
One concern expressed by judges about drafting pleadings in a limited scope context is that pro se pleadings are sometimes held to less stringent standards than pleadings drafted by lawyers. This disclosure requirement addresses that concern. I also note this concept generally reflects the conclusion that Blake Feamster arrived at in her ghostwriting article, cited above.
In addition to the OBA Access to Justice Committee working on these issues, the Oklahoma Supreme Court has formed the Oklahoma Access to Justice Commission. Our Oklahoma Free Legal Answers project was initiated by the Oklahoma Access to Justice Commission.
The National Center for Access to Justice in its Justice Index 2016
did not rank Oklahoma highly. The lowest-ranked states, from the bottom up are Mississippi, Wyoming, Puerto Rico, Nevada, South Dakota, Indiana, North Dakota, Oklahoma and Vermont. So there is definitely work to be done.
If you would like to read a discussion on limited scope representation with detailed analysis of the law, your attention is directed to a 2015 Rhode Island Supreme Court case Fia Card Servs., N.A. v. James D. Pichette.6
When I was in private practice I recall, on occasion, drafting pro se entries of appearance at no charge for potential clients whose answer dates had arrived but required a few more days to pay their attorney’s fees. Before I would give them that document and instructions on what to do, they had to acknowledge on a brief memo I drafted what types of defenses they were waiving by filing this pleading and that they now can be served with the notices at their address by both regular and certified mail. The entry was important to the individual. The signed memo was for my self-protection.
If this rule change is enacted, the OBA Management Assistance Program will be providing assistance on how to ethically, safely and quickly provide these services while also paying attention to the self-protection aspect, including documentation that the lawyer has complied with the two part test of Rule 1.2(c). We have been giving this potential change a lot of thought.
For your quick reference, here is the text of proposed Rule 33:
A lawyer providing limited scope representation under Rule 1.2 (c) of the Oklahoma Rules of Professional Conduct may draft pleadings for a pro se litigant to file with or present to a district court without the lawyer entering an appearance in the matter. A lawyer shall disclose such assistance by indicating their name, address, bar number, telephone number, other contact information and, optionally, a signature on said pleading with the phrase “No appearance is entered as counsel of record.”
If this rule is adopted by the Oklahoma Supreme Court, it is likely that more lawyers will embrace delivering services in this manner. This means more opportunity for lawyers, particularly young lawyers building a new private law practice.
It will also mean more of our citizens who are unable to afford full-service legal representation will have improved access to legal advice and high quality legal documents. Access to justice for all of our citizens is an extremely important goal.
Note: Rule 33 Limited Scope Representation was adopted by order of the Supreme Court of the State of Oklahoma, 2017 OK 53, effective June 19, 2017. As adopted the rule reads as follows:
A lawyer providing limited scope representation under Rule 1.2 (c) of the Oklahoma Rules of Professional Conduct may draft pleadings or other documents for a pro se litigant to file with or present to a district court without the lawyer entering an appearance in the matter. A lawyer shall disclose such assistance by indicating their name, address, bar number, telephone number, other contact information and, optionally, a signature on said pleading or other document with the phrase "No appearance is entered as counsel of record." [Emphasis added to highlight differences between rule as adopted and version in the article.]
Mr. Calloway is OBA Management Assistance Program Director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 1-800-522-8065 or jimC(at)OKbar.org. It's a free member benefit!
Originally published in the Oklahoma Bar Journal -- February 11, 2017 -- Vol. 88, No. 5