Standards for the Provision of Civil Legal Aid

Standard 3.4 on Limited Representation

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Standard

A provider may limit its representation to specific tasks and activities undertaken on a client's behalf, if the limited representation is reasonable under the circumstances and the client knowingly consents to the limitation.

Commentary

General considerations

Limited representation has been increasingly used in the legal profession generally and in legal aid practice in recent years. Such representation is known by various names: "discrete task representation," "limited scope legal assistance" and sometimes, "unbundled legal services." Discrete task representation involves a lawyer providing assistance with only a portion of what a client might need to fully resolve a legal problem. Such limited representation is based on the concept that the activities necessary to address a problem that a client encounters can be broken down into separate steps and that assistance of an attorney may be offered with regard to some, but not all of those steps. The limited service, therefore, might be only to offer legal advice regarding the actions that the client should take without the assistance of the lawyer. Or the lawyer may agree to undertake only the discrete task of intervening informally by making a phone call or writing a letter on behalf of the client. Limited representation may also be in the form of assistance drafting a document or preparing pleadings that the individual would use as a pro se litigant. Some forms of limited representation involve the practitioner "coaching" the client through a proceeding, such as litigation or mediation, without the attorney appearing for the client. Finally, in some jurisdictions, limited representation may encompass a lawyer making a limited appearance only for one or more specific hearings, such as for custody, but not for the divorce.

The large number of pro se litigants appearing in courts has caused many courts to alter their procedures and environment to be more accessible to pro se litigants. As a result, the level of service required for effective resolution of a client's problem will vary based on the degree to which court procedures are tailored to the needs of unrepresented litigants.

Legal aid providers often decide to offer limited representation in designated areas of practice where, in the judgment of the provider, the client can competently handle the matter with limited assistance or the relative benefit to the client of full representation will be limited. Limited representation can be an effective way to maximize the use of provider resources and to assist large numbers of clients efficiently. Its use may free up legal staff to engage in more extended representation.

Limited representation in the context of legal aid has been specifically recognized in Model Rule of Professional Conduct 6.5, the Comment to which states in part: "Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services-such as advice or the completion of legal forms-that will assist persons to address their legal problems without further representation by a lawyer."

This Standard is written to provide guidance to legal aid providers, since the decision to offer limited representation should be made by the provider in determining the most appropriate means to meet the needs of the low income communities they serve. Limited representation in the context of legal aid for low income persons differs in a significant way from limited representation for paying clients. The concept of "unbundled legal services" was developed and expanded in response to the need for moderate income persons who could not afford full representation by an attorney to be able to purchase that level of service needed by them to help resolve their legal problems. It is the client in such circumstances who decides what services to purchase based on the client's judgment of the need and the ability to pay.

In the case of free legal aid, limited representation is often offered through systems, such as hot lines, or pro se clinics. Other innovative ways to offer limited representation may evolve in response to changes in the practice generally and in how courts operate as they seek to facilitate pro se representation by litigants. In addition, new technologies may offer fresh ways to serve clients, including new forms of limited representation. In practice, in such systems, it is the legal aid provider, not the client that decides what level of service will be provided. That fact places a special burden on the provider to decide prudently when limited representation will be offered and creates special considerations with regard to the meaning of informed consent.

While the comments that follow focus primarily on the high volume limited scope delivery systems such as hotlines and pro se clinics, they apply as well to lower volume limited scope models, where more individualized service may be offered.

Responsibilities of the Provider

What constitutes "reasonable under the circumstances." A provider's decision to offer limited representation is reasonable when the assistance is likely to benefit clients by helping them to take steps to resolve their problem or to understand their situation, and the types of cases in which limited representation is offered are appropriate The provider also has the responsibility to assure that the underlying ethical requirements governing the provision of limited representation are met in practical ways that allow it to serve its clients effectively and efficiently, while assuring that its practitioners satisfy their professional responsibilities.

The decision to offer limited representation should be made in the context of the provider’s understanding of the legal needs of low income communities and its decisions concerning the delivery methods that will best respond to those needs. Offering limited representation in certain areas of practice can be an effective way to deploy resources efficiently to augment the number of clients served. A decision to offer limited representation should not be based solely on the fact that the provider has limited resources.

The decision should be made in the framework of the regional or statewide delivery system. Some providers may operate a statewide or regional hotline and rely on other providers to offer full representation in individual cases and systemic advocacy. A provider should not confine its assistance to limited representation, unless it participates in a regional or statewide delivery system in which a full range of assistance is offered. Because limited representation usually relies on clients taking action to assist themselves, it is important that the provider assess the extent to which clients generally are able to take advantage of the assistance and that it benefits them.

Substantive areas appropriate for limited representation. Cases in which limited representation is offered should be in substantive areas in which clients are likely to be able to assist themselves with the help of the provider's limited representation. One aspect of the decision involves prospective judgment, based on the provider's knowledge of the recurring problem, of the law and procedure pertinent to resolving the problem and of the low income communities it serves. A number of factors are appropriate to consider:

  • The complexity of the law that affects resolution of the matter. Simpler legal matters that are more easily understood by a broad range of clients are more likely to be susceptible of resolution through some form of self-help.
  • The complexity of the processes necessary to resolve or respond to the problem. Matters that involve straightforward procedures and do not typically involve the adverse party being represented by an attorney are more likely to lend themselves to effective client self-help. As courts modify their systems to facilitate pro se litigation, more legal matters may become more susceptible of effective resolution by pro se litigants, especially if they receive limited assistance.
  • The risk to clients if the matter is not resolved favorably. Some matters present a graver risk to clients than others. For instance, issues that involve clients’ or their families’ basic health or safety might require full representation for all or most clients, if most clients ultimately will not be able to resolve the issue without direct assistance.
  • The relationship between the potential benefit of full representation and the potential loss if clients are unable to represent themselves effectively. With some issues, there may be little likelihood of the client ultimately prevailing on the merits even with full representation. In such cases, limiting representation to advise the client of the likely outcome so that the individual can plan accordingly may be an appropriate response.
  • Factors that render limited representation inappropriate for a set of clients. There may be groups of clients for whom limited representation would not be appropriate because of language or cultural barriers or mental or physical limitations that would prevent them from following through without assistance. The provider should be aware of such groups and be cautious that they are not excluded from assistance because the only service offered would realistically not be useful to them.

Benefit to providers' clients. Because it is generally the legal aid provider, not the client, that decides when limited representation is an appropriate response to recurring legal problems, the provider has a responsibility to assess the potential benefits and limitations of such assistance to its clients. Decisions about substantive areas appropriate for limited representation should be informed by knowledge of the actual use clients have in fact been able to make of such limited representation.

The provider should periodically assess the actual outcomes for its clients that have received limited representation. The provider can, for instance, periodically follow up with a small number of clients by phone to determine what happened. Were clients able to take the steps necessary to follow through on the limited representation and were they in fact able to resolve the problem for which they sought assistance? Did clients' understanding of their legal problem allow them to take steps to avoid or ameliorate negative consequences?

Providers should be cognizant of the evolving legal culture and of changes in how courts respond to pro se litigants. It should also be aware of technological developments and innovative techniques for offering limited representation and self-help resources to clients. Periodically, based on the assessment of the environment and of the benefit to clients of the limited representation being offered, the provider should re-examine how it utilizes limited representation. It should make an informed judgment that the benefit that the client obtains justifies the cost of maintaining its systems as designed. If it finds only limited benefit from the limited representation, the provider should either end the service, expand the level of representation offered or redesign the approach to respond to identified deficiencies. The provider should be innovative and devise new ways to deliver legal services to the changing needs of their client populations.

Ethical considerations. Limited representation is authorized by Model Rule of Professional Conduct 1.2(c) which reads: "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." The comment to the Rule specifically notes that such limited assistance may include telephone advice:

"Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstance. If, for example, a client's objective is limited to securing general information about the law the client needs to handle a common and typically uncomplicated legal problem, the lawyer and the client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice on which the client could rely."

Limited representation does not mean low quality representation. An agreement to limit the scope of representation does not exempt the lawyer from the duty to provide competent representation and to protect the client's interests. The practitioner offering the representation has an obligation to inquire fully into the facts particular to the client's situation and apply the law with a full understanding of those facts. If advice or a form of limited service is being offered based solely on an interview of the client, the practitioner should assure that the interview probes appropriately into the facts to obtain as complete a picture as possible and to identify detrimental details that may not be presented in the client's initial recitation of the facts.

It should be noted that, while most states have adopted the 2002 revisions to Model Rule 1.2(c), some have made changes that significantly affect how the rule applies. Moreover, some courts have reacted negatively to limited representation such as "ghost-writing" pleadings for a pro se litigant. Other states have enacted specific rules that authorize and encourage ghostwriting. A provider that offers limited representation needs to assure that its practitioners are doing so in a manner that conforms to the specific ethical standards governing such assistance in its state.

Informed consent. This Standard reflects the requirement in Model Rule of Professional Conduct 1.2(c) that the client "must give informed consent" to a limitation on full representation. In the context of providing legal aid for low income persons, this requirement raises practical difficulties. Consent implies that the client can choose not to accept the limited representation and seek full representation elsewhere. In fact, however, there is often no realistic possibility of obtaining representation beyond the limited assistance that is offered by the legal aid provider. The actual option, therefore, is often between limited representation and no representation at all.

Notwithstanding, this practical limitation, if a legal aid provider has informed the client of the limited nature of the assistance being offered and the client has agreed to proceed, the client should be considered to have consented to the limitation. Ethical considerations require that the client be apprised of the limitations of the representation, however, including necessary actions for which assistance is not being provided and the practical risks for the client if the actions are not taken. In practice, this information is usually offered as a logical part of giving advice and explaining alternatives.

The Model Rule does not require clients to consent in writing; consent is implied if a client, having been informed of the limitations, continues with the interaction. In the event that the representation is subject of a retainer agreement, the limitations on the representation being offered should be in the agreement.

Responsibility to individual clients

One of the more challenging issues that arises in the context of limited representation involves the responsibilities of the provider and the individual practitioner providing the assistance to the individual client. An attorney-client relationship is formed and the ethical duties of providing competent representation and protecting the client’s interests must be met. In some instances, targeted limited assistance, such as coaching, limited intervention, or ghostwriting, may be sufficient to meet the needs of the client. In others, no amount of limited representation will be sufficient to resolve the problem. Many factors, such as the client's language capability, cultural values, level of education, emotional stability, self confidence and ability to communicate will affect the degree to which the individual can take steps to resolve the presenting problem with only limited assistance. In addition, some clients will not be able to assist themselves through self help efforts, without jeopardizing their employment, because of severe restrictions on their taking time off or even making phone calls during business hours.

The provider has a responsibility to assure that each practitioner responds appropriately when it is apparent that because of personal circumstances, a client will not be able to follow through on the limited assistance offered. The hard reality is that often because of resource limitations, the practitioner will not be able to offer the kind of assistance necessary to resolve the client's problem. In all cases, the provider should make certain that its practitioners know to advise the client of what is likely to happen.

There is a range of responses that may be appropriate depending on available resources in the regional or statewide delivery system.

  • The provider may set aside resources to offer full representation for those individuals who are not likely to be able to assist themselves. This is typically done if the potential risk to the client is high, such as permanent loss of shelter or family income.
  • If resources do not allow for full representation by the provider, they might support the provision of a more extended form of limited representation. Thus, for example, the provider might design its system so that a practitioner providing assistance limited to advice may offer to make a phone call, prepare pleadings or court forms (if permitted in the jurisdiction), provide coaching on court procedures, or draft a letter for clients for whom such extra assistance is necessary.
  • If the provider is unable to offer representation, it should assure that its practitioners are aware of other sources of assistance that might be available:
  • There may, for instance, be other providers that have the resources to provide more extensive representation. If, for instance, the client speaks limited English, there may be organizations established to meet the needs of clients from that cultural or linguistic community. A provider’s participant in statewide and regional systems may help foster the development of appropriate alternative resources to help clients it cannot.
    • Practitioners should also be made aware of sources of legal assistance short of full representation, such as websites and pro se clinics that might be available to help clients in appropriate circumstances.
    • Practitioners should know of sources of non-legal assistance to which clients might be referred to help them respond to the underlying problem. In an eviction matter, for example, the practitioner might refer the client to a housing assistance organization to help the individual find suitable replacement housing or provide emergency financial assistance to avoid the eviction.

When none of these resources is available, the provider should make certain that its practitioners at least advise the client of what is likely to happen, so that the individual can prepare for predictable developments.