Limited-Scope Representation: Preparing for the COVID-19 Influx of Cases

Bar associations and access-to-justice advocates have been discussing “unbundling,” or “limited-scope representations,” for more than 20 years. Yet, this tool continues to be underutilized, and it may even be disallowed or discouraged by courts.

The problem is not new. In 2003, the Modest Means Task Force of the Litigation Section published the Section’s Handbook on Limited Scope Legal Assistance. Litig. Sect., Am. Bar Ass’n, Handbook on Limited Scope Legal Assistance (2003). The handbook recognized that the majority of U.S. citizens at that time could not afford a lawyer to represent them.

The high cost of access to an attorney remains a problem today. A recent report from the Legal Services Corporation found that 86 percent of the civil legal problems faced by low-income Americans were addressed either inadequately or not at all. Legal Servs. Corp., Justice Gap Report (2017).

What Is a Limited-Scope Representation?

The Litigation Section’s handbook proposed “limited scope legal assistance” as a potential means to address the lack of access to lawyers. In a client engagement under a limited-scope representation, the lawyer offers a client certain designated services, or handles only certain discrete aspects of a matter, rather than representing the client for the entirety of the matter. See id. at 5; see also James G. Mandlik, “Attorney for the Day: Measuring the Efficacy of In-Court Limited-Scope Representation,” 127 Yale L.J. 1828, 1837 (2018). The ABA’s Unbundling Resource Center defines a limited-scope representation as follows:

Unbundling, or limited scope representation, is an alternative to traditional, full-service representation. Instead of handling every task in a matter from start to finish, the lawyer handles only certain parts and the client remains responsible for the others. It is like an à la carte menu for legal services, where: (1) clients get just the advice and services they need and therefore pay a more affordable overall fee; (2) lawyers expand their client base by reaching those who cannot afford full-service representation but have the means for some services; and (3) courts benefit from greater efficiency when otherwise self-represented litigants receive some counsel.

Standing Comm. on the Delivery of Legal Servs., Unbundling Resource Center, Am. Bar Ass’n (last visited Jan. 31, 2021).

The Litigation Section ’s handbook notes that in transactional contexts, limited-scope representations are commonplace. For example, one law firm may examine the tax implications of a project while another prepares the legal documents. In litigation contexts, many corporate clients are already effectively engaging in limited-scope representations by having in-house counsel handle certain aspects of a matter—such as gathering information responsive to discovery requests—while outside counsel handle motions, court hearings, and depositions. Pro bono and civil legal services attorneys may also provide limited-scope representations when they provide advice to a client about a family law or litigation matter, but then leave it to the client to file pleadings and makes court appearances pro se.

Rules and Resolutions Regarding Limited-Scope Representation

In 2013, the ABA House of Delegates adopted a resolution that calls on practitioners to consider limited-scope representations as a means for increasing access to justice, and the House called on state and local bar associations to increase public awareness of limited-scope representations as a means for potential clients to access lawyers. ABA H. Delegates Res. 108 (adopted Feb. 13, 2013). Rule 1.2(c) of the ABA’s Model Rules of Professional Conduct expressly authorizes limited-scope representations if a client gives informed consent. Many states have adopted similar ethics rules and court procedures that permit limited-scope representations. The Unbundling Resource Center provides a state-by-state breakdown of state rules, ethics opinions, and other valuable resources.

Benefits of Limited-Scope Representation

A 2018 study published in the Yale Law Journal found that clients who received a “lawyer-for-the-day” under a limited scope arrangement fared better than pro se litigants who did not have access to such an arrangement. Mandilk, supra, at 1828.

The study compared outcomes for defendant homeowners who participated in Yale’s Residential Foreclosure Litigation Clinic against outcomes for similar homeowners whose cases were assigned for a hearing on a date when the clinic was not available. Homeowners who participated in the clinic only received assistance from a lawyer or supervised law student for one day, and the lawyer or law student often entered an appearance on behalf of the client for that one time only.

The study found that homeowners who participated in the clinic had more successful outcomes than homeowners who appeared in court on days when the clinic was not available. Participating homeowners who received one-day legal help for their court appearance won significantly more time to remain in their homes before a foreclosure sale, were significantly more likely to delay a summary judgment ruling against them, and were more successful in diverting cases to mediation. Thus, this study found that even a one-day legal representation under a limited-scope representation resulted in significantly better results for low-income clients.

Disallowance of Limited-Scope Representations in Litigation

Despite the significant movement in favor of recognizing limited-scope representations, and the benefits for litigants when limited-scope representations are permitted, some courts disallow or impose hurdles on such representations. Two recent decisions from federal courts in California are examples.

In Hammett v. Sherman, a pro se plaintiff filed a motion for leave to retain an attorney for the sole purpose of collecting fees and costs incurred in connection with process of service. No. 19-CV-605, 2020 U.S. Dist. LEXIS 146155 (S.D. Cal. Aug. 13, 2020). The court denied the motion. While the court recognized that the rules for California state courts permitted limited-scope representations, “neither the Federal Rules of Civil Procedure nor this District’s Civil Local Rules do.” Id. at *4. Because the court concluded that there was “no mechanism for a limited-scope representation in this District,” the court denied the plaintiff leave to retain the attorney. Thus, at least in the U.S. District Court for the Southern District of California, no limited-scope representations are permitted.

In O.L. v. City of El Monte, another case arising from a California federal court, the pro se plaintiff filed a motion to hire an attorney for the limited purpose of having the attorney take two depositions. No. 20-cv-00797, 2020 U.S. Dist. LEXIS 203489 (C.D. Cal. Oct. 26, 2020). Under the local rules, the plaintiff was required to “meet-and-confer” with opposing counsel before filing the motion. The pro se plaintiff and the defense counsel communicated by email but never discussed the matter by phone. The court denied the plaintiff’s motion for leave to hire an attorney for a limited-scope representation due to his failing to comply with the court’s local rule—though the court provided the plaintiff an opportunity to refile after satisfying the meet-and-confer requirement.

The lawyer that the pro se plaintiff was seeking to hire for the limited basis of conducting the depositions would presumably have had greater familiarity with local practices and would have understood the rule, in particular that email was not sufficient to meet the requirements of the court’s meet-and-confer requirements.

The Upcoming COVID-Related Civil Litigation Crisis

The difficult economic conditions caused by the COVID-19 pandemic have created a looming housing and eviction crisis. According to one study, millions of Americans may be facing eviction when the Center for Disease Control’s eviction moratorium expires. Jerusalem Demsas, “We Know How to Prevent Up to 40 Million People from Being Evicted. It’s Up to Congress to Do It,” Vox (Nov. 27, 2020). Moreover, due to the pandemic, the number of residential mortgage delinquencies has increased. Ctr. for Hous. & Pol’y, Fed. Reserv. Bank of Atlanta, Mortgage Analytics and Performance Dashboard (updated Jan. 29, 2021). Thus, there is great potential that courts will be overwhelmed with eviction and foreclosure matters when moratoria are lifted.

These eviction and foreclosure issues come on top of the previously existing, well-documented shortage of lawyers handling domestic cases and the long-standing shortage of rural lawyers. Legal Servs. Corp., Justice Gap Report (2017); Wendy Davis, ABA Journal, “No Country for Rural Lawyers: Small-Town Attorneys Still Find It Hard to Thrive,” A.B.A. J. (Feb. 1, 2020) (noting that Arkansas recently adopted unbundling as a means for increasing access to lawyers for low-income clients living in rural areas).

As the prior cases demonstrate, not all courts permit unbundling. Greater use of limited-scope representations, however, would permit many civil litigants an opportunity to retain or hire a lawyer when they would not otherwise be able to afford one. More lawyer involvement in these cases would allow litigation to function with greater efficiency and would relieve burdens that are placed on courts by pro se litigants who are unfamiliar with court proceedings. These stresses are bound to increase due to the anticipated influx of pandemic-related litigation.

As lawyers and as members of the bar, we should encourage courts to examine their rules regarding limited-scope representations, to update them as needed in light of the changes to the law in the last decade that have expanded access to this tool, and to provide clear procedures for attorneys and litigants for the use of this tool. For example, in Louisiana, the author’s home state, the state courts have adopted a rule that permits attorneys to file a relatively simple “Notice of Limited Appearance” and have provided sample forms. Rules for La. Dist. Cts. r. 9.12. The notice, which must be signed by both the attorney and the client, “shall specifically state the limitation of legal services by subject matter, proceeding, date, or time period.” Id. The notice is filed with the clerk of the court and served on all counsel, but it does not need to be approved by the presiding judge. Readers may view the rules for their own states at the ABA Unbundling Resource Center.

Conclusion

While unbundling is not a panacea that solves all access-to-justice issues, the tool has demonstrated benefits for litigants who cannot afford a lawyer to handle all aspects of their case. Lawyers should be encouraging judges and courts—and especially state courts that resolve housing and foreclosure disputes that are expected to explode in number in the near term—to examine their rules now and ensure that those rules permit limited-scope representations.