July 1997

Limiting the Scope of Your Representation: When Your Client Wants, or Can Afford, Only a Part of You

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Often your client cannot afford, or does not want, to have you handle every aspect of a transaction or piece of litigation, and nearly equally often you cannot afford to do the work for free. Thus, both you and your client may want to limit the scope of your representation. This article considers some of your ethical obligations under the Rules of Professional Conduct ("RPCs") and some of the risks you may encounter.

For some clients you are a counselor or adviser, while for others you are an advocate. Your client may want only limited representation from you in either or both roles. Such a limited representation is generally both permissible and common. Although many legal problems involve complex legal issues and inter-relationships and might not be appropriate for such a limited representation, many other legal matters are essentially routine and amenable to limited representation. You may be able to serve well, for example, a client wanting merely a brief office consultation as to a narrow aspect of a particular matter, or seeking help drafting a particular clause in a document.

Limiting the scope of your representation as an advocate is also possible, although there does not appear to be a specific Washington court rule for generally doing so. For example, you might advise a client acting pro se in court as to litigation procedures or strategy, or draft pleadings for the client which lists the client as pro se (recognizing that such drafting constitutes the practice of law in the jurisdiction such pleadings are being used). Likewise, a pro se client might retain you to argue only one motion in a much larger piece of litigation. Where you are the attorney of record, you and your client might also agree, for example, in order to keep costs down, that you will undertake no discovery in a case, or will waive cross-examination of witnesses or opening or closing arguments (although your obligation to handle client matters competently might limit such a very narrow representation).

RPC 1.2(a) requires you to abide by your client's decisions concerning the objectives of the representation. RPC 1.2(c) permits you to limit the objectives of the representation "if the client consents after consultation." Thus, the two stated requirements to limit the scope of your representation are: (1) consultation with your client, and (2) your client's consent after that consultation.

Consultation with your client is required to assure that your client's decision is an informed decision. The RPCs define "consultation" as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." RPC 1.4(b) independently requires you to provide your client with the information needed to make informed decisions by requiring you to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Communication means exchanging information between two persons wherein each person understands the other. Thus, you must be reasonably assured that your client understands the information you are providing.

The type and extent of information needed to satisfy the "consultation" requirement varies with each client and the client's ability to understand. If your client has not regularly used a lawyer, you should take care that the client truly understands the limits of the representation and consequent risks, since he or she may well think of you as his or her lawyer and that you are representing him or her generally. While a client's subjective belief of the scope of the representation is important, it is only one factor to be considered, and does not control unless it is reasonably formed based on the attending circumstances. Bohn v. Cody, 119 Wn.2d 357, 363 (1992), Leipham v. Adams, 77 Wn. App. 827, 833 (1995).

After your client has consulted you, your client must consent for you to limit the scope of your representation, and that consent must be an "informed consent." Although the RPCs do not require the consent to be in writing, as a matter of good practice and self-protection it should be. It could be a part of your written fee agreement, or in a memorandum attached to it, or in a letter to your client confirming and describing your mutual decision to limit the scope of your representation. If your client disputes the limitation, the written consent would be merely one part of the relevant evidence, which might also include other documentation, your billing statements, or your course of conduct. For example, if you agree to represent your client in negotiations, but not in litigation, and then after negotiations fail you begin preparing for trial, the client may reasonably believe you have agreed to broaden the representation and be responsible for the trial. If a default judgment was then taken against the client, the client might well argue he or she reasonably expected you were going to handle the litigation despite the written limitation agreement.

If your client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, RPC 1.13 requires you to maintain, as far as reasonably possible, a normal client-lawyer relationship with the client. If you believe your client cannot adequately act in his or her own interest, you may seek appointment of a guardian or take other protective action with respect to the client. Given the central importance of consultation and informed consent in limiting the scope of your representation, however, you should be very careful in ever limiting the scope of your representation for such an impaired client. As a practical matter, unless a guardian has been appointed, you should probably take extra steps to represent the client since the client is unlikely to be able to look after himself or herself as well as a nonimpaired client would, and any limitation on the scope of your representation is likely to be very carefully scrutinized with the clarity of hindsight. Thus, for example, if your client is a young child, you are unlikely to have much true communication — and hence not likely to meet the consultation or informed consent requirements — in discussing a scope of representation issue with the child since the issues are complex and likely beyond the comprehension of most young children. Similarly, if you only speak English and your client does not understand English well, you may need a translator to assist you in communicating with your client. If you do not have a translator, you may not have satisfied the consultation requirement and thus invalidate any purported limitation by you on your representation.

The RPCs explicitly require you to limit the scope of your representation in only a few situations. RPC 1.2(d) prohibits you from counseling or assisting a client to engage in conduct that you know is criminal or fraudulent, and RPC 1.2(e) requires you to consult with the client in such a case regarding the RPC's limitations. If your client asks you to assist in a transaction that you know is tax or insurance fraud, for example, you may not do so. RPC 1.2(a) requires you to abide by your client's decision of whether to accept a settlement offer, and you may not accept such an offer on behalf of your client without your client's consent.

Ethical considerations under the RPCs and practical considerations may also make it advisable (or even require you) to limit the extent of your representation of your client. For example, RPC 1.3 requires you to represent your client with "reasonable diligence and promptness." If your obligations to your existing clients are already very heavy, you may not be able to satisfy this requirement either for your existing clients or your new client unless you agree with your new client to a very limited representation. Similarly, since RPC 1.1 requires you to provide competent representation to your client, you may not be able to do so unless you limit the scope of your representation to the areas of your expertise. If your practice is primarily a personal injury practice, you might not have the competence to handle a family law problem, or, if your practice is primarily a business practice, you might still not have the expertise to handle a proposed public securities offering. Likewise, you may find that the conflict-of-interest provisions of the RPCs may permit you to provide only a very limited representation for a particular client. Under RPC 1.15 you may also need to limit, or even terminate, your representation for various reasons, including when your physical or mental condition materially impairs your ability to represent the client.

Even if you and your client can limit the scope of your representation, you may not want to do so. From a purely economic perspective, the reduced amount of your legal fees may simply not offset the significantly increased risks of liability for you in the transaction. For example, you may be wise to refuse to undertake a limited representation of your client in a securities offering (such as just reviewing an offering document drafted by your client), and insist instead on handling the entire transaction for your client because the liabilities you are incurring in the transaction are far more extensive than, and out of proportion to, the much reduced legal fee. Similarly, you may hesitate to review just one or two clauses in a will or marital separation agreement drafted by your client without insisting on a complete review of the document, since the likelihood of interrelated clauses and legal issues is great.

A dissatisfied client is likely to challenge a purported limitation by refusing to pay your bill or by filing a malpractice suit or a disciplinary bar grievance. The client may contend, for example, that he or she never authorized you to undertake certain aspects of the representation for which you billed the client and that your fees are unreasonable for the limited representation the client contends was authorized. If the client is dissatisfied with a litigation result or a settlement, the client may contend you were not authorized to handle it or to handle it the way you did. Or, if something was not done that should have been done, the client will likely argue that you should have done it and that he or she never agreed that you would not be responsible for doing it. In Leipham v. Adams, 77 Wn. App. 827, 894 P.2d 576 (1995), for example, a client contended that a lawyer should have filed a disclaimer for federal tax purposes of a joint tenancy interest. The lawyer prevailed, but only after considerable litigation, proving that he and the client had agreed to a limited representation.

The RPCs generally permit you to limit your representation of a client, and in many instances doing so is beneficial to you and to your client. If you do so, make sure you consult with your client, that your client consents, that you document the consultation and consent, and that you weigh carefully the economic effects of a reduced fee and a possibly increased professional liability.