September 01, 2019

Future Proofing

Scoping Out Limited Scope Representation

Dan Pinnington & Reid Trautz

Unbundling or limited scope retainers are touted as tools that can help consumers afford legal services they presently forgo. Future-thinking lawyers know they can expand their practices by accepting these limited engagements, but many worry judges won’t always respect those contractual limits. Some jurisdictions have taken steps to encourage and facilitate the broader availability of unbundled legal services, especially in family law. In this column we interview Jim Calloway, director of the Management Assistance Program at the Oklahoma State Bar, about the recent limited scope representation changes in Oklahoma.

First, Jim, to make sure everyone understands what we are talking about, can you tell us what limited scope representation is?

Limited scope representation, also called unbundled services or a limited scope retainer, means a lawyer providing part, but not all, of the services needed in a client’s legal matter by agreement between the lawyer and the client. At its very simplest, it might be a lawyer drafting documents, and the client having responsibility for filing and presenting them to a court. The lawyer devotes less time, and there is a cost savings for the client, who still gets some legal advice and help.

Is there a different level of standard expected for limited scope services?

No. While your fees will be lower because you are doing less work for the client, you owe the same duties of competence, diligence, loyalty and confidentiality to limited scope clients that you owe to full service clients. This includes understanding their particular circumstances sufficiently to give them appropriate legal advice. When handling only part of a client’s matter, one needs to be extremely careful that the client has a clear understanding of the work the lawyer is doing—and not doing.

As a best practice for limited scope retainers (which is a requirement in many jurisdictions), I strongly suggest that the client sign or receive a document that details the scope of the retainer. It’s an important element of both client service and risk management that it be very clear about the work that the lawyer is doing and not doing. The lawyer’s interaction with a client in the office may be brief, with the client file opened and closed in the same day, or the services may be delivered online. In either event if there is a grievance months later, the lawyer may have little independent recollection of the details.

Can you tell us the factors that drove the creation of the Oklahoma limited scope rule? 

Our Oklahoma Access to Justice Commission has been raising consciousness on many issues of access to justice, including this one. The Oklahoma Rule of Professional Conduct on this matter is identical to the ABA Model Rule of Professional Conduct 1.2(c) that provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” It was clear that many lawyers were avoiding offering these services because they didn’t want to anonymously “ghostwrite” pleadings and perhaps incur the disapproval of a local judge. Unfortunately, there wasn’t a clear way to disclose their drafting participation without entering an appearance for full scope representation. From an accountability point of view, most would agree some kind of acknowledgment that a lawyer provided assistance on a pleading is appropriate.

What was your state’s solution?

Other jurisdictions have experimented with different methods of accomplishing this, but to me the limited attorney appearance and “quick” withdrawal method seems to miss the point as it results in additional legal fees for the client. Keeping in mind that the most simple solution is often best, District Court Rule 33 was adopted by the Oklahoma Supreme Court in 2017 and provides that lawyers disclose their drafting participation by placing their signature blocks on any document filed with, or presented to, a court, and they must include a statement that they are not entering an appearance. If the lawyer is drafting a document for a client to file as a pro se, they should also include the client’s name, address and a signature space for them, if needed.

What’s your best practical advice for a lawyer who wants to start offering unbundled legal services? 

While your drafting skills are important, your clients will appreciate helpful instructions and good coaching. Provide information on where to park for free, the hours of the court clerk’s office and when certain types of hearings are routinely held. Embedding photographs of the courthouse, the courtroom or the court clerk’s door in the documents will be appreciated by those unfamiliar with the courthouse. Provide a sample “script” of what statements should be made, along with appropriate responses to questions the court may ask. This will streamline the process for everyone and reduce your client’s anxiety. These aids also demonstrate an advantage the local lawyer has over a national online document preparation service.

What else should be in your business plan?

Internet-based advertising with a social media component will be helpful for those attempting to promote this type of service delivery. Lawyers have not traditionally advertised pricing information, but online shoppers expect to see it. A list of services and corresponding flat fees will likely be best. As this is lower-margin and higher-volume work, some automated document assembly procedures will be needed. This will not only speed up the document creation process but also reduce errors and proofreading time. Lawyers may record instructional videos for the clients to view in the office or online on a site only available to the firm’s clients.

What are the malpractice risks with limited scope representation?

Risk is managed by good engagement agreements, documentation of who is responsible for what tasks and checklist-style workflow documentation, with lawyers and staff “checking off” when they complete the tasks. Unfortunately, today you will want to require a photo ID when anyone will be executing documents in your office and keep a copy of that. Sometimes a lawyer may rely on his or her instincts and decide to make a videorecording of an entire in-office visit just so the entire conversation is documented. Obviously, that should be stored securely.

Where can lawyers go to learn more about limited scope representation? 

The following sites have sample limited scope retainers, checklists and client information materials: (1) the ABA Standing Committee on the Delivery of Legal Services’s Unbundling Resource Center page, (2) practicePRO’s Limited Scope Representation Resources page and (3) the Oklahoma Bar Association’s Limited Scope Services Resource page.

Conclusion.

Limited scope legal services are but one solution to the complex issues of expanding access to justice. A significant volume of these matters can provide a reliable income stream for a lawyer, and even a small volume can help pay for the overhead as a lawyer pursues other, more extensive work. Consider whether limited scope representation would work for your area(s) of practice and, if so, use the advice and resources cited in this column to start offering unbundled services to your existing clients and other members of the public who need help with legal issues but are not getting it. 

Dan Pinnington is the president and CEO of Lawyers’ Professional Indemnity Company and was the driving force behind the innovative practicePRO claim prevention initiative. He is a past editor-in-chief of Law Practice and was chair of ABA TECHSHOW 2001.    

Reid Trautz is the director of the Practice and Professionalism Center of the American Immigration Lawyers Association. He is a long-standing member of the ABA Law Practice Division, serving as chair of ABA TECHSHOW 2012 and currently serves as co-chair of the Futures Initiative.