Maine
Cases
Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member.
Rules
Ethics Opinions
Maine State Bar Ethics Opinion No. 89 (1988)
A lawyer is not required to sign a complaint or enter an appearance as counsel of record when representation is solely limited to preparation of the complaint.
Maryland
Articles
Paula L. Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, Court Review, p. 8, (Winter 2003).
Evan Koslow, 3 important benefactors of limited scope representation, The Daily Record (June 26, 2017).
Michael Millemann, et al., Rethinking the Full-Service Representation Model: A Maryland Experiment, Clearinghouse Review (Mar./Apr. 1997).
Patrick Tandy, New Rule Changes Outline Limited Scope Representation, Maryland State Bar Association Bar Bulletin (October 13, 2015)
Books and Reports
Clearing a Path to Justice: A Report of the Maryland Judiciary Work Group on Self-Representation in Maryland Courts (August 2007).
Evaluation of the Glen Burnie District Court Self-Help Center, Maryland Administrative Office of the Courts and the Institute for Government Service and Research (IGSR), University of Maryland (April 2012).
Interim Report and Recommendations, Maryland Access to Justice Commission (Fall 2009).
Events
Rules
Maryland Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs. Maryland RPC 1.2 was recently amended (March 2, 2015) to require that under certain circumstances the scope and limitations of a limited representation by an attorney be set forth in a writing, to add a new Comment [8] pertaining to the scope of a limited representation, and to add a new Comment [9] pertaining to representation of a client in a collaborative law process.
Maryland Rules of Procedure governing limited appearances include:
- 1-321: On service after entry of a limited appearance;
- 1-324: On notification when an attorney has entered a limited appearance;
- 2-131: Permitting the entry of a limited appearance under certain circumstances and adding a form of acknowledgment of the scope of limited representation in circuit court;
- 2-132: Permitting an attorney who has entered a limited appearance to file a notice of withdrawal under certain circumstances in circuit court;
- 3-131: Permitting the entry of a limited appearance under certain circumstances and adding a form of acknowledgment of the scope of limited representation in district court; and
- 3-132: Permitting an attorney who has entered a limited appearance to file a notice of withdrawal under certain circumstances in district court.
Massachusetts
Articles
Andrea R. Barter, Limited Assistance Representation Pilot Program Receives High Marks, Expands, Lawyers Journal (January 2008).
Edward M. Ginsburg, Commentary: Ways to Make Legal Fees More Affordable for the Public, Massachusetts Lawyers Weekly (March 9, 2009).
Christina P. O’Neill, Law a la Carte, Massachusetts Lawyers Journal, Vol. 17, No. 10 (July 2010).
Books and Reports
Addressing the Needs of Self-Represented Litigants in Our Courts: Final Report and Recommendations, Massachusetts Supreme Judicial Court Steering Committee on Self-Represented Litigants (November 21, 2008).
Appendix - Addressing the Needs of Self-Represented Litigants in Our Court: Final Report and Recommendations, Massachusetts Supreme Judicial Court Steering Committee on Self-Represented Litigants (November 21, 2008).
Pro Se Litigants: The Challenge of the Future, Massachusetts Probate and Family Court Department Pro Se Committee Report (Dec. 1999).
Report of the Boston Bar Association Task Force on Unrepresented Litigants (Aug. 1998).
Rules
Massachusetts Rule of Professional Conduct 1.2(c) governs limited scope representation.
Massachusetts Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Supreme Judicial Court Order In Re: Limited Assistance Representation permits limited appearances with a filed Notice of Appearance; allows an attorney to withdraw by filing a Notice of Withdrawal of Limited Appearance; requires service on both attorney and client for matters within the scope of the limited appearance; and allows an attorney to assist in preparing a pleading, motion or other document as long as the phrase “Prepared with the Assistance of Counsel” is included on the document.
Ethics Opinions
Massachusetts Bar Ass'n Committee on Professional Ethics, Op. 98-1 (1998)
An attorney may provide limited background advice and counseling to pro selitigants. However, providing more extensive services, such as drafting pleadings, i.e., ghostwriting, would usually be misleading to the court and other parties and therefore would be prohibited.
Limited Scope Training Materials and Programs
http://www.mass.gov/courts/docs/lar-training-manual.pdf
http://www.mass.gov/courts/programs/legal-assistance/lar-gen.html
Michigan
Articles
John W. Allen, The New Uncertainties of ADM 2016-41: "Informed Consent" and "Confirmed in Writing", Michigan Bar Journal (March 2018)
Lori A. Buiteweg, Limited Scope Representation: A Possible Panacea for Reducing Pro Per Court Congestion, Attorney Underemployment, and a Frustrated Public, Michigan Bar Journal (August 2016).
Charles R. Toy, Justice for Whom?, Michigan Bar Journal (May 2010).
Bradley A. Vauter, Unbundling: Filling the Gap, Michigan Bar Journal, Vol. 79, at 1688 (2000).
Reports
Envisioning a New Future Today, State Bar of Michigan 21st Century Practice Task Force (2016)
Rules
Michigan Rule of Professional Conduct 1.2(b) permits limited scope representation. 1.2(b)(1) provides that a lawyer may draft or partially draft pleadings, briefs, and other papers to be filed with the court without a signature, but such a filing requires a statement saying that the document was drafted with the assistance of a lawyer. 1.2(b)(2) states that documents prepared in accordance with 1.2(b)(1) do not constitute an appearance. (Amended September 20, 2017)
Michigan Rules of Professional Conduct 4.2 and 4.3 govern communication and notice requirements. (Amended September 20, 2017)
Michigan Rule of Professional Conduct 6.6 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Michigan Court Rule 2.107 governs service and filing of pleadings and other papers. (Amended September 20, 2017)
Michigan Court Rule 2.117 governs appearances and withdrawal. (Amended September 20, 2017)
Ethics Opinions
State Bar of Michigan Op. RI-348 (2010)
After consultation with the client, a lawyer may ethically limit the scope of representation in the context of Chapter 7 bankruptcy proceedings. The lawyer must provide competent representation to the client in light of the proposed limitations and the proposed limitations may not violate other law.
State Bar of Michigan Op. RI-347 (2010)
An attorney may assist a pro se litigant by giving advice or preparing documents as long as the attorney complies with the Michigan Rules of Professional Conduct. An attorney who assists a pro se litigant is not required to appear in any proceeding and is not required to disclose the assistance to the court or opposing counsel.
State Bar of Michigan Op. RI-301 (1997)
When no confidential information has been divulged and the participant of apro se self-help clinic has signed an agreement where the legal services agency disavows legal representation, no client-lawyer relationship is established. The legal services agency that provides the clinic is not disqualified from representing a party to litigation when the litigation has been filed by a participant in the clinic.
Video
Limited Scope Representation Rules: Serving the Public in More Affordable Ways (State Bar of Michigan, January 2018)
Minnesota
Articles
Lindsay Davis, Want to Promote ATJ? Think Unbundled, Bench & Bar of Minnesota (August 2016).
John Del Vecchio, Sharing the Experience, Bench & Bar of Minnesota (September 2010).
Andrea Nordick, Leveling the Playing Field for Pro Se Litigants, Hennepin Lawyer (December 2009).
Kevin Slator, A Look at Limited Scope Legal Assistance, Minnesota Lawyer (December 1, 2008).
Books and Reports
Minnesota Family Law Limited Scope Representation Risk Management Materials, Minnesota State Bar Pro Se Implementation Committee (Revised 2009).
Pro Se Implementation Committee Annual Report, Minnesota State Bar Association (2001-2002).
Report of the Minnesota Conference on Chief Justices Committee on the Treatment of Litigants and Pro Se Litigation (Apr. 1996).
Recommendations and Report, Minnesota State Bar Association Pro Se Implementation Committee, (Jan. 2002).
Report of the Statewide Law Library/Self-Help Center Advisory Workgroup, Minnesota State Court Administrator’s Office (January 17, 2007).
Cases
In re Petition for Disciplinary Action Against A.B., a Minnesota Attorney, Panel Case No. 35121 (2014)
An attorney received an admonition for violating Minnesota Rule of Professional Conduct 8.4(d), to “engage in conduct that is prejudicial to the administration of justice,” as a result of failing to appear at a hearing. Because the client instructed the attorney not to attend, pursuant to the terms of a limited-scope representation agreement, the Court reversed the disciplinary panel’s finding.
Rules
Minnesota Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Minnesota General Rule of Practice for the District Courts 110 governs the operation of self-help programs.
Mississippi
Rules
- Mississippi Rules of Professional Conduct governing limited scope representation include:
- Rule 1.2(c) expressly permitting limited scope representation.
- Comment to Rule 1.2(c) encouraging lawyers to offer limited scope representation; indicating that lawyers may provide counseling, advice, draft letters or pleadings, with or without appearing as counsel of record; and, in litigation, permitting lawyers to attend hearings on discrete matters or specific issues.
- Rule 6.5 governing the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Ethics Opinions
Mississippi State Bar Op. 176 (1990; Amended 2013)
An attorney may participate in a counseling service sponsored by a Chamber of Commerce in which business owners receive free legal counseling on a limited basis.
Missouri
Articles
Kathleen Bird, A Look at Unbundling of Legal Services, Journal of the Missouri Bar (January-February 2007).
Sara Rittman, Limited Scope Representation a/k/a Unbundled Legal Services, Missouri Supreme Court Legal Ethics Counsel (September 29, 2008).
Books and Reports
Analysis of Survey of Missouri Circuit Clerks Regarding Pro Se/Pro Bono Services, Missouri Supreme Court Committee on Access to Family Courts (September 30, 2008).
Missouri Supreme Court Joint Commission to Review Pro Se Litigation: Report to the Supreme Court of Missouri and the Missouri Bar (September 2003).
Pro Se Litigation Interim Feasibility Committee Report, Supreme Court of Missouri and Missouri Bar Association (September 2004).
Report on the Special Committee on Limited Scope Representation, Supreme Court of Missouri and Missouri Bar Association (July 20, 2007).
Rules
Missouri Rule of Professional Conduct 1.2 expressly permits limited representation with written consent and governs communication between opposing counsel and limited representation client.
Missouri Rules of Professional Conduct 1.16 (c) requires a lawyer to file a notice of termination of limited appearance to withdraw from representation.
Missouri Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Missouri Rule of Civil Procedure 43.01(b) requires service on otherwise self-represented person and not on limited appearance attorney unless notified in writing to do otherwise.
Missouri Rule of Civil Procedure 55.03 governing unbundling includes:
- Rule 55.03(a) permitting a lawyer to draft pleadings or motions for self represented litigants without signing the documents;
- Rule 55.03(b) explicitly allowing limited appearances with a written entry of appearance and allowing an attorney to withdraw, when the matter is completed, by filing a “Termination of Limited Appearance;” and
- Rule 55.03(c) permitting a lawyer who assists with drafting to rely on the self-represented party’s representation of facts.
Missouri Rule of Civil Procedure 88.09 requires unrepresented parties to complete a litigant awareness program and to use court approved forms.
Ethics Opinions
Advisory Committee of the Supreme Court of Missouri Formal Op. 124 (2008)
It is ethically permissible for Missouri attorneys to engage in collaborative law practice. The attorney must inform the client how the process works and must obtain the client’s written consent.
Missouri Bar Ass'n Advisory Op. 940161
It is impermissible for a lawyer to draft responsive pleadings to an unrepresented opposing party in a divorce. However, a lawyer may draft an entry of appearance if the lawyer includes a letter indicated that he or she represents the opposing party and that the unrepresented party should obtain counsel.
Missouri Bar Ass'n Advisory Op. 940049
It is impermissible for a lawyer to prepare an answer for an unrepresented opposing party in a divorce or marital separation.
Montana
Articles
Angie Wagenhals, MLSA using the power of limited scope to bridge access to justice gap in Montana, Montana Lawyer, pg. 11 (August 2016)
Angie Wagenhals, With MLSA’s phone-advice program, attorneys can do the Montana public good — in just 1 hour, Montana Lawyer (June/July 2017)
Cases
Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of "ghost writing," which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.
Rules
Montana Rule of Professional Conduct 1.2(c) governs limited scope representation and outlines requirements for obtaining informed consent.
Montana Rule of Professional Conduct 4.2 establishes the presumption that a self-represented party is unrepresented unless notified to the contrary in writing.
Montana Rule of Professional Conduct 4.3 establishes the presumption that a self-represented party is unrepresented unless notified to the contrary in writing.
Montana Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Montana Rules of Civil Procedure enabling limited scope representation include:
- Rule 4.1(a) expressly permitting an attorney to provide limited scope representation to a person involved in a court proceeding;
- Rule 4.1(b) clarifying that providing limited scope representation does not constitute an entry of appearance and does not authorize or require service on the attorney;
- Rule 4.1(c) permitting limited appearances as long as a notice of limited appearance is filed and served prior to or simultaneous with the actual appearance and indicating that service on an attorney who has made a limited appearance shall be considered valid only when the service is in connection with the specific proceedings for which the attorney appeared;
- Rule 4.2(a) permitting limited appearances as long as a notice of limited appearance that specifically states the limitation is filed and served prior to or simultaneous with the actual appearance;
- Rule 4.2(b) allowing an attorney to withdraw, without leave of court, by filing a notice of completion of limited appearance; and
- Rule 11 permitting an attorney to draft a document without signing it and allowing the attorney who assists with drafting to rely on the self-represented party's representation of facts.
Ethics Opinions
Montana State Bar Ass'n Advisory Op. 900409 (1990)
It is unethical for an attorney to sell "do-it-yourself" divorce kits. Kits lead clients to believe that they need no further consultation with a lawyer and present a very real possibility that client will suffer harm as a result of failure of the kit to meet particular needs.
Nebraska
Articles
Dennis Carlson, Amendments to Rules Facilitate Unbundling of Legal Services, The Nebraska Lawyer (November/December 2008).
Mary Kay Hansen & George D. Lyford, Limited Scope Representation, a Handy Tool for DIY Litigants, The Nebraska Lawyer (November/December 2010).
Books and Reports
Report of the Nebraska Supreme Court Committee on Pro Se Litigation (Nov. 22, 2002).
Rules
Nebraska Rules of Professional Conduct enabling unbundled services include:
- Rule 501.2(b) expressly permitting limited scope representation;
- Rule 501.2(c) allowing an attorney to prepare court filings for pro se litigants so long as the filings include “Prepared By” with the name, business address and bar number of the attorney. It clarifies that such disclosure does not create an entry of appearance while also requiring the pro se litigant to sign the filing;
- Rule 501.2(d) allowing an attorney to enter a limited appearance if the client consents in writing; and
- Rule 501.2(e) establishing a procedure for withdrawal that requires the attorney to file a “Certificate of Completion of Limited Representation;”
- Rule 504.2[10] allowing opposing counsel to communicate with client on matters outside scope of limited representation; and
- Rule 506.5 governing the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Nebraska Court Rules of Pleading in Civil Cases governing limited appearance and withdrawal include:
- Rule 6-1109 (h) allowing lawyers to enter a "Limited Appearance" as long as the client consents in writing, the scope of the representation is clearly defined, and a copy is provided to the client and opposing counsel or opposing party;
- Rule 6-1109(i) permitting a lawyer to withraw upon completion of the limited representation as long as the attorney files a "Certificate of Completion of Limited Appearance" with the court and provides copies to the client and opposing counsel or opposing party. Court approval is not required and, once filed, the lawyer no longer has an obligation to represent the client; and
- Rule 6-1111(b) permitting attorneys who do not appear as attorney of record to prepare pleadings, briefs and other documents to be filed with the court as long as the filings include the "Prepared By" along with identifying information, and clarifying that doing so does not create an appearance by the lawyer.
Ethics Opinions
Nebraska State Bar Ass'n Ethics Op. 94-2
Non-lawyers may not, through a 900 number telephone service, provide legal advice to the public. Attorneys encouraging such an enterprise would be in violation of the rule that prohibits a lawyer from aiding a non-lawyer in the practice of law.
Nevada
Books and Reports
Simplifying the Maze: A Fresh Look at Nevada’s Court System, Nevada Supreme Court Judicial Assessment Commission (October 2000).
Rules
- Nevada Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
- Rules of Practice of the Eighth Judicial District Court of the State of Nevada governing unbundling include:
- Rule 5.28(a) requiring an attorney who offers limited scope representation to include that limitation on the first paragraph of the first paper or pleading filed on behalf of the client and to notify the court at the beginning of a hearing when a limited appearance is made.
- Rule 5.28(b) permitting an attorney to withdraw from representation by filing a “Notice of Withdrawal of Attorney," with a copy of the limited services retainer agreement between the attorney and client, and serving it on the client and all other parties or their attorneys.
Ethics Opinions
State Bar of Nevada Formal Ethics Opinion No. 34 (2006, Revised 2009)
A lawyer who provides substantial assistance to a self-represented litigant must disclose such assistance to the court. The lawyer’s identity must be disclosed by signing all papers filed with the court for which the lawyer gave substantial assistance to the pro se litigant, by drafting or otherwise. In non-litigation settings, any attorney that provides substantial assistance to a pro se litigant must disclose such assistance, in writing, to the opposing party.
New Hampshire
Books and Reports
Challenge to Justice: A Report on Self-Represented Litigants in the New Hampshire Courts, New Hampshire Supreme Court Task Force on Self-Representation (Jan. 2004).
Commission on the Status of the Legal Profession: Report and Recommendations to the New Hampshire Supreme Court (February 2007).
Rules
- New Hampshire Rule of Professional Conduct 1.2 governs limited representation and provides a sample consent form.
- New Hampshire Rule of Professional Conduct 4.2 creates the presumption that limited representation client is unrepresented for purposes of communication, unless notified otherwise in writing.
- New Hampshire Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in one time consultations with clients through non-profit and court annexed legal programs.
- New Hampshire Rule of Civil Procedure enabling unbundled services include:
- Rule 3, requiring that pleadings and communication be furnished to both client and limited representation attorney until withdrawal of limited appearance; and
- Rule 17(c), explicitly permitting limited appearances in non-criminal cases so long as the precise scope of the limited representation is stated on a filed notice;
- Rule 17(f), allowing automatic termination of representation when an attorney files a “withdrawal of limited appearance” and gives notice of the completed representation to all parties; and
- Rule17(g) permitting an attorney to prepare documents without signing them so long as the statement “This pleading was prepared with the assistance of a New Hampshire attorney” appears on the document.
New Jersey
Cases
Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
Attorney, with matrimonial client's consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.
Rules
New Jersey Rule of Professional Conduct 1.2 (c) governs limited scope representation.
New Jersey Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Ethics Opinions
New Jersey Supreme Court Advisory Committee on Professional Ethics Op. 713 (2008)
Limited Representation is fully permissible as long it follows the requirements of RPC 1.2 (c). Disclosure of limited assistance is not required if part of a non-profit program designed to provide legal assistance to people of limited means, or if it represents an effort by a lawyer to aid someone who is otherwise unable to afford an attorney. Disclosure of limited assistance is required in other situations such as when a used as a tactic to gain advantage in litigation or when a lawyer effectively controls the final form and wording of pleadings and the conduct of litigation.
New Jersey Sup. Ct. Comm. On Attorney Advertising Op. 17 (1994)
Is it not unethical per se for a lawyer to operate a 900-number pay-per-call service giving legal advice. However, the lawyer must comply with the ethics rules and should proceed with great caution.
New Mexico
Books & Reports
Report of the Self Represented Working Group to the Supreme Court of New Mexico, New Mexico Commission on Access to Justice (May 2007).
Rules
New Mexico Rules of Professional Conduct governing unbundling include:
- Rule 16-102(c) permitting limited representation with consent;
- Rule 16-303(E) requiring lawyer to disclose scope of representation to court; and
- Rule16-605 governing the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
New Mexico Rules of Civil Procedure governing limited appearances include:
- Rule 1-089(A)(1) permitting limited appearances in district court as long as the attorney files a Limited Entry of Appearance that identifies the nature of the limitation;
- Rule 1-089(C) allowing an attorney who has completed the purpose of the representation to withdraw without court order by filing and serving a notice of withdrawal or substitution of counsel;
- Rule 2-107(C) permitting limited appearance in magistrate courts as long as the attorney files a limited entry of appearance that identifies the nature of the limitation and notes the limitation in the signature block of any paper filed with the court;
- Rule 2-108(A) allowing an attorney to withdraw without consent from magistrate courts, as long as the representation is completed;
- Rule 3-107(C) permitting limited appearances in metropolitan courts as long as the attorney files a limited entry of appearance that identifies the nature of the limitation and notes the limitation in the signature block of any paper filed with the court; and
- Rule 3-108(A) allowing an attorney to withdraw without consent from metropolitan courts, as long as the representation is completed.
New Mexico Supreme Court General Rule 23-113 governs communication between self-represented litigants and court staff, and grants immunity to court staff for any information provided to self-represented litigants.
Ethics Opinions
New Mexico Ethics Advisory Op. 1987-12 (1987)
Where an opposing client is proceeding pro se but has given the attorney no indication that he is relying on the attorney to protect his rights, the attorney has no obligation to call to the court's attention a possible mistake that favors the attorney's client. The attorney is entitled to act as though the opposing client were represented by counsel and accordingly require the opposing client to protect his own rights.
New Mexico Advisory Op. 1987-6 (1987)
A lawyer may participate in a pro bono clinic that provides educational programs to individuals interested in pro se representation, provided the programs do not give specific legal advice to any individual.Self-Service Centers
New York
Articles
Fern Fisher-Brandveen and Rochelle Klempner,Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urban L J 1107 (Feb. 2002). (Abstract)
Hon. Richard Dollinger, Part 1: Limited scope representation in NY, Buffalo Law Journal (January 31, 2017)
Hon. Richard Dollinger, Part 2: Limited scope representation in NY, Buffalo Law Journal (February 8, 2017)
Richard S. Granat, eLawyering: Providing More Efficient Legal Services With Today’s Technology, New York State Bar Journal (September 2008).
Rochelle Klempner, Unbundled Legal Services in Litigated Matters in New York State: A Proposal to Test the Efficacy Through Law School Clinics, Working Paper, Partners in Justice Colloquium (May 2005).
Carol A. Sigmond, Letter from the President of New York County Lawyers' Association: Unbundling Legal Services, Metropolitan Corporate Counsel, (August 27, 2015).
Blogs
Part 2: Limited scope representation in NY
This is the second of a two-part Buffalo Business First article analyzing limited scope representation and its status in New York.
Part 1: Limited scope representation in NY
This is the first of a two-part Buffalo Business First article analyzing limited scope representation and its status in New York.
Books and Reports
A Report on Programs and Services for Self-Represented Litigants in the New York State Courts, Office of the Deputy Chief Administrative Judge for Justice Initiatives (September 2001).
Best Practices for the Administration of Court-Sponsored Volunteer Lawyer For The Day Programs, New York State Courts Access to Justice Program (January 2010).
Best Practices for Court Help Centers and Programs to Assist Unrepresented Litigants, New York State Courts Access to Justice Program (December 2009).
Expanding Access to Justice in New York State, Office of the Deputy Chief Administrative Judge for Justice Initiatives (March 2009).
Facilitating Access Training Program Reference Manual: Volume 1, New York State Courts Access to Justice Program (January 2010).
Facilitating Access Training Program Reference Manual: Volume 2, New York State Courts Access to Justice Program (January 2010).
Federal Pro Se Legal Assistance Project Nine-Month Report, City Bar Justice Center (December 31, 2015).
Report and Recommendations on "Unbundled" Legal Services, Commission on Providing Access to Legal Services for Middle Income Consumers, New York State Bar Association (Dec. 2002).
Report of the Subcommittee on Limited Scope Representation, NYSBA President’s Committee on Access to Justice (November 5, 2016).
Self-Represented Litigants: Characteristics, Needs, Services, The Results of Two Surveys, Office of the Deputy Chief Administrative Judge for Justice Initiatives (December 2005).
Volunteer Lawyer for a Day Project Report: A Test of Unbundling in the New York City Housing Court, Joint Report by Office of the Administrative Judge of the Civil Court of the City of New York, Office of the Deputy Chief Administrative Judge for Justice Initiatives and the NYC Bar Association’s Committee on Legal Services (February 2008).
Cases
In re Fengling Liu, 2nd U.S.Circuit Court of Appeals, No. 09-90006 (2011)
The Committee on Attorney Admission and Grievances recommended an attorney who provided undisclosed ghostwriting services for a pro se litigant receive a public reprimand. While the Court ultimately found the attorney had committed misconduct related to other issues, it found that the attorney’s ghostwriting did not constitute sanctionable misconduct. Since no rule or precedent governs attorney ghostwriting, the Court found that the attorney did not have an obligation to disclose participation.
Rules
AO/285/16: Administrative Order of the Chief Administrative Judge of the Courts, with the Consent of the Administrative Board of the Courts (December 16, 2016) making it the policy of the Unified Court System to support and encourage limited scope representation and encourage judges and justices to permit limited scope appearances (under certain conditions - see full Order).
Local Rules of the United States District Court for Southern and Eastern Districts of New York, Civil Rule 7.2 requires counsel to provide pro se litigants with printed copies of decisions cited when unreported or reported only on computerized databases.
New York Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Ethics Opinions
New York County Law Association Committee on Professional Ethics Op. 742 (2010)
It is ethically permissible for an attorney to prepare pleadings and other submissions for pro se litigants. Lawyers are not required to disclose such assistance, except in certain, limited situations.
Ass’n of the Bar of the City of New York Formal Op. 2009-2 (2009)
Ethics rules permit an attorney to make certain statements to a self-represented individual who is adverse to their own client. The attorney may identify general legal issues that a self-represented person should address and may also discuss undisputed statements or facts of law. In addition, an attorney may advise a self-represented individual to seek counsel and may also refer a self-represented litigant to seek assistance from a court-sponsored self-help program. The attorney may also clarify his or her role, and must volunteer such information if the self-represented person misunderstands the attorney’s role in the matter.
New York State Bar Ass'n Op. 613 (1990)
A lawyer who does not appear as counsel of record for a pro se litigant may prepare responsive pleadings and demands for financial disclosure, provided the lawyer investigates the matter adequately.
North Carolina
Articles
Camille Stell, CYA Corner: Unbundled Service Does Not Mean Unnecessary Risks, The Advocate (June 2011).
Books and Reports
Caught in the Middle: 2003 Report and Recommendations of the North Carolina Bar Association Pro Se Task Force (Dec. 2003).
Cases
Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.App.)
Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.
Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
In a legal dispute surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina.
Rules
North Carolina General Statute 50B-2(d) requires the clerk of superior court in each county to provide pro se litigants with all necessary forms.
North Carolina Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Ethics Opinions
North Carolina State Bar Formal Op. 3 (2008)
A lawyer may assist a pro se litigant by drafting pleadings and giving advice without making an appearance in the proceeding and without disclosing or ensuring the disclosure of his assistance to the court unless required to do so by law or court order.
North Carolina State Bar Formal Op.10 (2005)
Lawyers may provide services over the internet so long as: 1) the lawyer website includes a physical office address; 2) the lawyer provides competent representation, engaging in the same level of communication and taking precautions as does a lawyer in a law office; 3) the lawyer determines jurisdiction of client and runs comprehensive conflicts checks and; 4) the lawyer takes reasonable precautions to protect confidential information transmitted to and from the client. Lawyers providing services over the internet may offer unbundled client services if they obtain client consent, provide competent representation and follow RPC 1.2 (c).
North Carolina State Bar Formal Op. 6 (2002)
A lawyer may not represent one party in a divorce and prepare pleadings for the other ( pro se) party to sign, regardless of the willingness of the parties.
North Carolina State Bar RPC 114 (1991)
Legal services attorneys may provide legal advice and drafting assistance topro se litigants without appearing as counsel of record. If court approved pleading forms exist, attorneys may make them available to individuals wishing to proceed pro se.
North Dakota
Rules
North Dakota Rule of Professional Conduct 1.2(c) allows a lawyer to limit the scope of representation if the client consents in writing after a consultation. (Amended June 29, 2016; Effective August 1, 2016)
North Dakota Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
North Dakota Rule of Court 11.2 governs attorney withdrawal when an attorney has filed a notice of limited representation; a "Certificate of Completion of Limited Appearance" is required to withdrawal as opposed to court approval. (Amended June 29, 2016; Effective August 1, 2016)
North Dakota Rule of Civil Procedure 5(b) establishes the requirements for service on an attorney providing limited scope representation.
North Dakota Rule of Civil Procedure 11(e) establishes requirements for notice of limited appearances, the preparation of pleadings for an otherwise self-represented party, and withdrawal after a limited apperance. (Amended June 29, 2016; Effective August 1, 2016). Notice upon all parties stating precisely the scope is required; the preparation of pleadings, briefs and other documents does not consitute an appearance; and the filing of a "Certificate of Completion of Limited Appearance" is required to withdrawal as opposed to court approval.
Ohio
Articles
Eileen Pruett and Bert Tiger Whitehead, Limited scope representation: A new way of thinking about accessible legal services, Ohio Lawyer (September/October 2016)
Kathleen M. Sampson, Meeting the Pro Se Challenge: An Update, American Judicature Society, Vol. 84, at 326 (May/Jun. 2001).
Books and Reports
Report and Recommendations of the Supreme Court Task Force on Pro Se & Indigent Litigants, Supreme Court of Ohio (April 2006)
Report and Recommendations of the Supreme Court of Ohio Task Force on Access to Justice, The Supreme Court of Ohio (March 2015)
Cases
Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.
Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.
Rules
Ohio Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Oklahoma
Articles
Blake M. Feamster, Ghostwriting: An Ethical Issue in the Evolution of the Legal Field, Oklahoma Bar Journal (December 2016)
Judith Maute and Kade McClure, Making a Difference in Oklahoma, The Oklahoma Bar Journal, Vol. 80, No.1 at 64 (January 2009).
Rules
Oklahoma Rule of Professional Conduct 1.2(c) governs limited scope representation.
Oklahoma Rule of Professional Conduct 6.5 governs the responsibility to determine conflicts in non-profit and court-annexed limited service programs..
Oregon
Articles
Helen Hierschbiel, The Ethics of Unbundling: How to Avoid the Land Mines of "Discrete Task Representation," Oregon State Bar Bulletin (July 2007)
Amber Hollister, Unbundling Legal Services: Limited the Scope of Representation, Oregon State Bar Bulletin July 2011).
Mark Johnson Roberts, Not So Impractical: Ethics Considerations in Limited Scope Representations, Oregon State Bar Bulletin, pg. 9 (October 2016).
Mark Johnson Roberts, Unbundling Legal Services: New Trial Court Rule Supports Access to Justice, Oregon State Bar Bulletin (January 2018).
Beverly Michaelis, Unbundling, Part II: How to Reduce Malpractice Exposure while Meeting Client Needs, Oregon State Bar Bulletin, Vol. 59, p. 35 (1999).
Beverly Michaelis, Unbundling in the 21st Century: How to Reduce Malpractice Exposure while Meeting Client Needs, Oregon State Bar Bulletin, (August/September 2010).
Books and Reports
The Future of Legal Services in Oregon, Oregon State Bar Futures Task Force (June 2017)
Oregon Family Law Legal Services Commission Report to the Oregon Legislative Assembly (Jan. 1999).
Self-Representation in Oregon’s Family Law Cases: Next Steps, SFLAC’s Self-Represented Legal Services Subcommittee, Oregon Judicial Department (September 2007).
Rules
Oregon Rules of Professional Conduct 1.2(b) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Oregon Uniform Trial Court Rule 2.010(7) requires a pro se litigant to file a Certificate of Document Preparation, disclosing whether he or she had paid assistance from a lawyer in selecting or completing a pleading.
Form 2.010.7 Certificate of Document Preparation provides a court approved form that is required to accompany any document not bearing the name and bar number of an attorney.
Oregon Uniform Trial Court Rule 5.170 governs notice, termination and service of documents, and provides a Notice of Limited Scope Representation form and a Notice of Termination of Limited Scope Representation form.
Ethics Opinions
Oregon State Bar Association Formal Opinion No. 2011-183
Limited scope representation is expressly allowed by Oregon RPC 1.2(b) and clarifies that an attorney may limit representation to certain actions or to certain issues. Communication is addressed and attorneys are encouraged to use written engagement letter to minimize risks associated with providing limited scope representation.
Pennsylvania
Articles
Ellen C. Brotman, Unpacking Unbundled Legal Services: Why Does the DOJ Care? The Legal Intelligencer (June 20, 2017)
David Grunfeld, Ghostwriting: Limited Scope Agreements Are Allowed Under Pennsylvania Rules of Professional Conduct, The Philadelphia Lawyer (Spring 2012)
Books & Reports
Recommendation of the Task Force on Meeting the Legal Needs of the Middle Income People, Pennsylvania Bar Association (June 2007).
Report and Recommendation of the Task Force on Self-Represented Litigation, Commission on Justice Initiatives in Pennsylvania (December 2006).
Cases
Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record.
U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney's duty of candor to the court, interferes with the court's ability to supervise the litigation, and misrepresents the litigant's right to more liberal construction as a pro se litigant.
Rules
Pennsylvania Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
Ethics Opinions
Pennsylvania Opinion 2011-100
A lawyer may ethically limit the scope of representation of a client, but must adhere to the normal duty of competence and must be sure the client has exercised informed consent to the limitation. Lawyers are not under an obligation to disclose his or her role to either opposing parties or to a tribunal. Five safeguards for lawyers engaging in limited scope representation are outlined in the opinion.
Rhode Island
Articles
Melissa Darigan, Changes in How We Practice: Limited Scope Representation is Here, Rhode Island Bar Journal (Nov-Dec, 2015)
Katie Mulvaney, Rhode Island Supreme Court ruling opens door for legal help, Providence Journal (June 22, 2015)
Cases
FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I. 2015)
The Rhode Island Supreme Court has held that "An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gives informed consent. See Rule 1.2(c). Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship." The holding also states, however, that an attorney's involvement in the preparation of pleadings for a self-represented litigant, known as ghostwriting, requires full disclosure. This decision was in response to a set of appeals from three attorneys who did not disclose their identities when they authored pleadings on behalf of pro se defendants in three different debt collection cases. The Supreme Court considered (1) whether Rule 11 of the Superior Court Rules of Civil Procedure applies to an attorney who neither signed a pleading nor entered his or her appearance in the case; and (2) whether the anonymous preparation of pleadings for self-represented litigants is permissible under the Rules of Professional Conduct. Ultimately, the Court found that an attorney "shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation. The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance."
Rules
Rhode Island Rules of Professional Conduct 1.2(c) and 6.5 govern limited scope representation and the responsibility to determine conflicts in non-profit and court-annexed limited service programs.
UPDATE: Provisional Rules for Limited Scope Representation in Rhode Island
On May 23, 2017, the Rhode Island Supreme Court issued an order provisionally amending Article V of the Rules of Professional Conduct to expand upon rules regarding the limited scope representation of clients. In doing so, the Court states that,"This Court recognizes that the provision of limited-scope representation services to litigants in Rhode Island is a novel and, at present, unknown frontier for the bench, bar, and lay public alike." The amendments, which establish procedures for preparing pleadings, limited appearances and withdrawal, are adopted on a provisional basis to encourage ongoing assessment and commentary. The Court will review those assessments in one year.
