April 2003

Slicing the Onion: Proposed Rules of Professional Conduct and Court Rules Make It Easier for Private and Nonprofit Legal Practitioners to Provide "Unbundled" Legal Services¹

by Kim Prochnau

Introduction

Recent amendments to the Washington Rules of Professional Conduct (RPCs), as well as superior court and district court rules, clarify and facilitate the ability of attorneys to limit the scope of their representation.² Popularly known as "unbundled legal services," this alternative to traditional full-service representation is sometimes referred to as "limited service representation" or "discrete task representation."³ 

A significant number of Washingtonians are unable to afford attorneys. Despite the remarkable efforts of the access to justice community, the resources provided by pro bono and nonprofit legal-assistance providers fall far short of the need. A cursory review of the studies on pro se litigation (or a visit to any of the high-volume civil calendars) will demonstrate that a very high percentage of litigants in "personal plight" cases (such as family law or defendants in eviction cases) are unrepresented. The choice for many people of low- and even moderate-income means is not between "unbundled services" and traditional full-service representation, but between "unbundled services" and no legal assistance. In recent years, there has been much discussion of how, and under what circumstances, it is appropriate to "slice the onion" by providing "unbundled" services in the area of civil law — thereby stretching limited "free" services and making for-cost services affordable to a larger segment of our society. 

Lawyers have been providing "unbundled" services, of course, since time immemorial. For example, many lawyers provide an initial client consultation, at the end of which the lawyer and client may or may not agree that the lawyer should file suit on behalf of the client. Generally, both lawyers and clients are comfortable with "slicing the onion" thin enough to allow for a separate consultation without any requirement that the lawyer represent the client in the lawsuit. This does not absolve the lawyer of his ethical duties, however, to provide competent representation to the client. An attorney may limit the scope of his representation to a brief consultation as to a possible personal-injury claim. However, if the lawyer fails to adequately inquire as to the timing of the injury and to advise the client of any applicable statutes of limitations, the lawyer may be made painfully aware of his ethical duties through disciplinary proceedings and malpractice claims.

Limited-service representation is increasingly used as another opportunity to provide access to justice for low-income people. Notable examples are Northwest Justice Project's CLEAR program, King and Spokane counties' housing justice projects, and a number of domestic-violence advocacy organizations which provide attorneys to appear for petitioners in protection-order proceedings.

Meanwhile, some solo practitioners and small law firms are "unbundling" their practices, most notably in the area of family law. Some practitioners prefer to be able to collect for services at the time of or in advance of the service, so they can spend less time worrying about their accounts receivable. Many clients are unable to provide a sufficient retainer for full-service representation, but can afford to pay for limited services on a "pay as you go" basis. Some attorneys also enjoy the lifestyle advantages of providing limited legal services. They may be able to work from home or part-time, and do not have to commit at the beginning of the case to what could be protracted litigation. Lawyers are even starting to market their "limited services representation" services on the Internet.⁴

This trend has encouraged the American Bar Association (ABA), as well as several states, to study their rules of professional conduct to clarify how and under what circumstances lawyers may agree to provide "unbundled services."⁵ In recent years, a number of articles, seminars and even manuals have been published on how to provide limited-services representation in a responsible and efficient manner.⁶

Outline of Rule Changes

1. RPC 6.5

Legal-services organizations, courts, and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services (for example, county bar association legal clinics and the CLEAR telephone hotline system). Such programs are normally operated under circumstances in which it is not feasible to systematically screen for conflicts of interest. Because there is no expectation by the client or lawyer that continuing legal services will be rendered, and because services will be limited in scope by agreement with the client, this new rule relaxes the usual conflict-of-interest rules for such short-term limited legal services.

RPC 6.5 now requires a "conflicts check" before providing short-term limited legal services under the auspices of a program sponsored by a nonprofit organization or court only if the lawyer knows that the representation presents a conflict of interest for the lawyer or the lawyer's firm.⁷ If, however, after commencing a short-term representation in accordance with the proposed rule, the lawyer undertakes to represent the client on an ongoing basis, the more stringent requirements of RPCs 1.7, 1.9(a) and 1.10 become applicable.

For example, a tenant facing eviction may seek advice from a lawyer volunteering for an evening legal clinic. That lawyer will likely be unable to check with his firm to determine whether another member of the firm represents the tenant's landlord. Under the new rule, the lawyer can briefly provide legal advice to the tenant. Only if he recognizes the landlord's name as his own client will he be barred from providing advice, due to a direct conflict of interest. And he will only have an imputed conflict of interest if he has actual knowledge of the conflict, i.e., the tenant has in his possession the eviction paperwork with the lawyer's firm name on the documents. However, before the lawyer agrees to represent the tenant at the eviction hearing, he must go back to his office and check for conflicts. Note that the relaxed conflict-of-interest rules do not apply to for-profit organizations, even if the services are short-term in nature.

Under narrow circumstances, the new rules also allow a nonprofit organization or court-annexed program such as CLEAR to assign two lawyers from the same program to represent opposing parties. The program must, however, first demonstrate through the use of an effective screening mechanism that it will maintain the respective clients' confidences and secrets and assure the individual lawyers' loyalty to their clients.  

2. RPC 1.2(c): Scope of Representation

The changes to RPC 1.2 (c) are set forth below: 

A lawyer may limit the [objectives] scope of the representation if the limitation is reasonable under the circumstances and the client consents after consultation. An agreement limiting the scope of the representation shall consider the applicability of rule 4.2 to the representation.⁸

The new rule clarifies that attorneys and clients may agree to "limited services representation" provided that the limitations based on the scope are reasonable under the particular circumstances. The comments note that, although an agreement to limit legal services does not exempt a lawyer from a duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. A client's consent to limiting the scope of the representation need not be in writing, although it is obviously better to do so when practicable.

3. RPC 4.2 and 4.3: Communication with Person Represented by Counsel/Dealing with an Unrepresented Person

Under RPC 4.2, a lawyer who knows a person is represented by a lawyer as to a particular matter generally may not communicate with that person as to that matter.

When a person is receiving limited services representation, however, opposing counsel may normally treat that person as not represented by counsel (thus, the lawyer's duties toward that person would be governed by RPC 4.3) and may communicate directly with that person.⁹ This allows an attorney and client to limit the scope of the attorney's representation to brief advice or document drafting, for example, without fear that the attorney will be unwillingly brought in for extensive negotiations.

However, the opposing attorney may not communicate with the opposing party directly if he "knows of, or has been provided with, a written notice of appearance under which, or a written notice of time period during which, he is to communicate only with the limited-representation lawyer as to the subject matter within the limited scope of the representation."¹⁰

These changes relieve opposing counsel from having to speculate as to whether he is free to communicate with the opposing party directly, and address one of the most common complaints voiced by lawyers when dealing with a person who may or may not be receiving limited services from a lawyer. The new rules place the burden on the lawyer providing "unbundled services" to prepare a written notice and to make sure opposing counsel knows of its existence if the lawyer providing limited legal services does not want opposing counsel to communicate directly with the client.

4. CR 4.2; CrRLJ 4.2: Process-limited Representation

Representation of a person by an attorney at "…any proceeding before a judge, magistrate, or other judicial officer on behalf of the person constitutes an entry of [general] appearance pursuant to RCW 4.28. 210 and CR 4(a)(3), except to the extent that a limited notice of appearance as provided for under [new] CR 70.1 is filed and served prior to or simultaneous with the actual appearance." (Bracketed material added for emphasis.)

This rule (coupled with CR 70.1/CRLJ 70.1), in effect, allows a lawyer to make a special appearance in a court case. While most clients and cases may be best served by full-service representation, the reality is that many litigants are appearing pro se either because they cannot afford or do not want full-service representation. A lawyer can now accept a modest fee for a court hearing or agree to argue a motion pro bono without undue fear that he will be forced to stay in the case until the litigation is finished.

Together, the amendments to this rule and CR 70.1/CRLJ 70.1 (discussed below) allow a lawyer to provide limited legal services in a civil proceeding in superior, district or municipal court. However, the lawyer must obtain the consent of the client in advance, provide a written notice of limited appearance before or at the hearing, and must comply with other RPCs, including the duty to provide competent representation. If on balance, representing the client for the one hearing alone will "slice the onion" too thinly by doing more harm than good, the lawyer must refuse the representation. See, RPC 1.2 (c).

Some pro bono and legal-assistance providers have been using "limited notices of appearance" for several years. For example, the Eastside Legal Assistance Program (in King County) has used such notices to allow pro bono lawyers to both appear for a protection-order hearing and to immediately withdraw after the hearing; the notice contains their client's written consent to the limited representation. The rule, in effect, approves such an approach.

5. CR 70.1; CrRLJ 70.1

This new rule formally permits a "notice of limited appearance"; proper utilization of the notice will allow a lawyer's role to terminate automatically and without necessity of leave of court.

When "…filed and served prior to or simultaneous with the proceeding, an attorney's role may be limited to one or more individual proceedings in the action. Service on an attorney who has made a limited appearance for a party shall be valid (to the extent permitted by statute and rule 5(b)) only in connection with the specific proceedings for which the attorney has appeared, including any hearing or trial at which the attorney appeared and any subsequent motions for presentation of orders. At the conclusion of such proceedings, the attorney's role terminates without the necessity of leave of court upon the attorney filing notice of completion of limited appearance, which notice shall include the client information required by rule 71(c)(1)."¹¹ (CR 71(c)(1) requires disclosure in the notice of the trial date, if any, and the name and service address of the client or clients.)

Where the attorney is appearing for only one hearing and orders will be immediately entered, he may be able to combine the notice of appearance with a notice of completion of limited appearance, and serve and file it at the hearing. If it later develops that the hearing must be continued, or presentation of orders is set over for a later date, that attorney continues in his role until the conclusion of the hearing or presentation. It is preferable, although not mandatory, that the documents include an agreement signed by the client consenting to the limited representation.

It is this author's opinion that the notice of limited appearance should be called to the attention of the court and opposing counsel no later than the beginning of the hearing.

6. CR 11; CrRLJ 11

One of the major ethical questions posed by "unbundled services" has been whether lawyers may draft pleadings for their otherwise self-represented clients without affirmatively disclosing their involvement on the face of the document. This practice, commonly known as "ghost-writing," was specifically prohibited by a federal court in Colorado. The Colorado State Supreme Court has enacted rules requiring all pleadings to disclose the name of any attorney providing drafting assistance. The drafters of Washington's rule, however, rejected such an affirmative disclosure requirement after listening to a practitioner's comments about the practical problems presented. A litigant may visit several different lawyers for advice; he may hire a lawyer to prepare a pleading and then make his own changes to the pleading before filing it; or he may obtain a court form from the Internet and briefly speak to an attorney over the telephone before completing the pleading. None of these examples allows an attorney to maintain exclusive control over the content of a pleading or the court to reasonably infer what portions of the pleading the attorney is responsible for.¹² 

Washington's rule, however, does clarify that the requirements and risks of CR 11 will generally be applied to lawyers providing drafting assistance for any "pleadings, motions, or documents filed by an otherwise self-represented person," to the extent that objectionable material in the document is the product of the lawyer's drafting and not the client's later changes. Just as with traditional representation, a lawyer cannot draft a motion for a pro se litigant where the lawyer knows that it is being filed merely to harass the other party. However, the attorney "may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which case the attorney shall make an independent reasonable inquiry into the facts."¹³

CR 11(b) addresses the practical problems faced by lawyers whose brief contact with the client does not make it practicable to make the same type of inquiry into the facts as if the lawyer were providing full-service representation. When an attorney volunteers for an evening at the local bar association's legal clinic, his advice is normally dependent on the client's version of the facts and the attorney's knowledge of the applicable law; the attorney will not ordinarily be able to review the client's court file. The new rule makes it clear that when providing such limited-service representation, the attorney may ordinarily rely on the client's representation of facts. However, if he has reason to believe that such representations are false or materially insufficient, the attorney is required to make an independent reasonable inquiry into the facts before assisting with any pleadings, motions or documents filed with the courts. Thus, if a client wants to file a motion for contempt of the parenting-plan order but doesn't have a copy of the parenting-plan and can't remember what it says, the attorney might reasonably refuse to assist the client until the client has actually reviewed the parenting plan or has provided it to the attorney for his review.

Conclusion

While not the first in the nation to enact "unbundled" rules, Washington can take pride in having the most thorough set of rules to date. Washington's RPCs now explicitly allow attorneys and clients to agree to limit the scope of representation. Opposing counsel may communicate directly with an otherwise self-represented person unless they know of or are provided with a written notice instructing them to communicate with counsel. When providing short-term limited legal services under the auspices of a court or nonprofit program, a lawyer is not required to systematically check for conflicts of interest, but may rely on his knowledge of any direct or imputed conflict of interest.

While most of the requirements of CR 11 still apply to a lawyer who provides drafting assistance with pleadings even if the lawyer's name is not on the pleading, the lawyer is only responsible to the extent that the objectionable materials are the result of the lawyer's drafting and not that of the litigant. And, a lawyer merely providing help with drafting of pleadings need not make an independent investigation of the facts but may rely on the client's representations, unless the attorney has reason to believe the representations to be false or materially insufficient. Lawyers may appear for discrete proceedings in a municipal, district or superior court action and immediately withdraw at the conclusion of the hearing, provided that a notice of limited appearance is served and filed at or before the hearing.

No doubt there will be problems with application of the rules. However, they represent a pragmatic approach to the dual problems of access to justice and the gap between what clients can afford to pay and what lawyers need to charge for full-service representation.  

Kim Prochnau is a King County Superior Court commissioner, and member of the Washington State Access to Justice Unbundled Services Committee and the ABA Standing Committee on Delivery of Legal Services.

NOTES

1. An earlier draft of this article was prepared for the June 2002 Access to Justice Conference. Credit goes to Barrie Althoff, chair of the Unbundled Services Committee, for his extensive editing of this article.

2. The new rules were endorsed by the WSBA Access to Justice (ATJ) Board, Superior and District Court Judges' Associations, and the ABA Standing Committee on the Delivery of Legal Services. The rules were prepared at the request of the ATJ Board by its Unbundled Legal Services Committee (Barrie Althoff, chair; and King County Superior Court Commissioners Kim Prochnau and Nancy Bradburn-Johnson). The committee consulted extensively with national legal-ethics experts and Washington lawyers who actually provide unbundled services; the suggested rules incorporate comments informally received from legal-services organizations as well as lawyers' and judges' committees.

3. The rules are found at 157 Wn.2d 4 (Oct. 29, 2002). An electronic version of the rules and the drafters' comments may be accessed at http://www.courts.wa.gov/rules.

4. See, for example, www.onlyfamilylaw.com.

5. The ABA's governing body enacted model rules to facilitate unbundling in August 2002. See, http://www.abanet.org/cpr/ethics2k.html. Colorado and Maine have followed suit.

6. An extensive bibliography, as well as selected articles, may be found at http://www.unbundledlaw.org. This Web site is an outgrowth of a national conference co-sponsored by the ABA. See, also, Mosten, Forrest, "Unbundling Legal Services: How to Deliver Legal Services a la Carte for Improved Service and Profits" (American Bar Association, 2000). (This very extensive manual can be ordered from the ABA's publications division or directly from the author at http://www.mostenmediation.com.) Barrie Althoff has written extensively on the ethical constraints of "unbundling" under Washington law. See, Althoff, Barrie, "Limiting the Scope of Your Representation," Washington State Bar News (June and July 1997). See, also, the spring 2002 edition of Family Courts and Conciliation Review for a compilation of articles on "unbundled legal services."

7. The ABA model rules adopted in August 2002 are similar but not identical.

8. Cf., ABA Model Rules of Professional Conduct 1.2 (c) (August 2002) ("A lawyer may limit the scope of the representation if the limit is reasonable under the circumstances and the client gives informed consent.").

9. There is no parallel change to the ABA Model Rules of Professional Conduct.

10. RPC 4.2(b) (Oct. 29, 2002).

11. CR 70.1(b); CrRLJ 70.1(b) (Oct. 29, 2002).

12. Of course, the court may inquire of a litigant whether he has had assistance with a pleading. It should take any answer with a grain of salt, however, given the all-too-human propensity of trying to "shift the blame."

13. CR 11(b); CRrLJ 11(b).