6.06.01. Limited Scope Representation and Unbundled Legal Services

Lawyers have always been able to ethically limit the scope of their representation.  Rule 1.2(c) provides that a lawyer may “limit the scope of the representation” if (1) the representation is reasonable under the circumstances and (2) the client gives informed consent.  Historically, what was meant by limiting the scope of representation was straightforward.  For example, if a client goes to a tax lawyer for advice on a tax issue, the lawyer could validly limit his representation to that tax issue and was not obligated to also represent the client in their divorce.  There were also other limitations that were allowed.  For example, the lawyer and client could agree that certain actions would not be taken during the course of representation because they were too costly.  The line in this traditional since of “limitation” was when the lawyer’s representation was so limited it would be impossible for the lawyer to competently represent the client.

Clarence Client is contemplating a divorce.  He knows that the matter will be very contentious.  Clarence is married to Wendy Wife.  They have two minor children and jointly own a number of rental properties.  Clarence calls up Audrey Attorney and tells her that he wants to hire her for two hours to give him advice about his divorce.  Audrey immediately realizes after talking to Clarence for 15 minutes that to competently inform him about his rights in a divorce proceeding she would need five hours.  If Attorney agrees to a representation of Client limited to two hours, has she acted unethically? [ABA Rules of Professional Conduct, Rule 1.2, Comment [7]]

Yes.  Under the circumstances, it would not be reasonable to limit representation here to two hours.  Thus, the Rule 1.2 contemplates a representation that is not so limited that it cannot satisfy the client’s objectives.  Underlying the ABA approach is that the lawyer may limit the scope of representation in the sense that the lawyer can limit what is done during the representation or who the lawyer represents (i.e. only the parent company and not the subsidiaries).  

Some states have taken the idea of “limited representation” further.  States have started using the idea of “limited representation” to expand access to legal representation to those of limited means.  This means that a lawyer can ethically limit representation to only a portion of the case, and then allow the client to proceed pro se.  So, for example, a lawyer may be retained just to draft a complaint, an answer, a motion, or a response to a motion.  This is typically called “unbundled” legal services because it separates out (unbundles) each aspect of representation.  Here is what the Mississippi Supreme Court said when recognizing unbundled legal services in its ethical rules:

Often, a lawyer will want to help someone who faces a legal problem, but the potential client is unable to pay and the lawyer just cannot commit the time and resources to handle the entire matter.  This rule change will allow the lawyer to provide some help, rather than none at all.[1]

This new approach to limited scope representation is not without its problems.  How can disciplinary authorities ensure that these behind-the-scenes lawyers are acting ethically?  How can the bar have any assurance that the documents are being drafted by individuals licensed in the state?  Some states require a lawyer performing these limited actions to put their name on the document (or at least “drafted by”)[2], but doesn’t that go against the idea that the lawyer is involved in the case only to the extent he has drafted the document?  Does unbundled representation increase the number of invalid filings?  After all, if the lawyer is paid just to draft the document without having to subsequently face the court regarding the document, the incentive may be to draft as many documents as possible to maximize profits (leaving the client to subsequently defend it pro se).  These are not easy questions to answer.  Bar associations and courts have started setting out the parameters of this new form of limited representation. The obligations vary greatly from state to state.

[1] Press Release, “Supreme Court adopts rules to encourage pro bono service” (January 31, 2011)(located at: https://courts.ms.gov/Newsite2/news/2011/01.27.11limitedrepresentationrule.pdf).

[2] Alabama Ethics Op. 2010-01.