How do I implement it into my practice?

  1. What should I consider before I take on a limited representation case? Is every case suitable for unbundled legal services? If not, how do I tell which cases are or are not?
  2. Do I need to screen potential clients?
  3. Must the agreement I have reached with my client regarding the scope of representation be in writing?
  4. Am I obligated to do anything outside of the agreed upon limited scope?
  5. As a limited scope attorney, can I represent both husband and wife in preparing settlements for other agreements necessary for them to get a divorce? Can I provide limited representation to a couple who have agreed on the essential terms of their marital settlement agreement but need a lawyer to put the agreement in proper legal form?
  6. Can the other side’s attorney communicate with my client if I am providing unbundled services?
  7. What do I need to do to properly limit the scope of my services with my client if I am making an appearance with the court?
  8. How do I properly terminate my representation with my client if I have made an appearance with the court?
  9. What are common but avoidable missteps relating to limited scope representation?
  10. Where can I find training on providing unbundled legal services?
  11. Where can I find guidance on the nuts and bolts of building an unbundled practice?

What should I consider before I take on a limited representation case? Is every case suitable for unbundled legal services? If not, how do I tell which cases are or are not?

Before agreeing to provide limited scope services, an attorney must evaluate whether the matter is appropriate for limited scope representation. Some family law cases are too complex strategically and tactically to allow for a workable allocation of responsibilities between the attorney and the client. Also, cases involving issues relating to alleged violent behavior usually are not suitable for partial representation. You should consider whether:

  • The case can be broken down into concrete steps that can be easily divided between client and lawyer;
  • There are complex issues;
  • All of the parties have been identified;
  • The other side will be difficult to locate and/or serve;
  • There is a critical deadline looming, and if the client is responsible for meeting that deadline, whether he/she is capable of doing so;
  • You are able to verify the client’s material facts and, if not, whether the client understands the consequences of proceeding without your verification;
  • Making a limited court appearance is permitted in your jurisdiction, if you will need to do so

Resources:

Trial Court of Massachusetts, Limited Assistance Representation Training Manual.

  • This Massachusetts Trial Court Training Manual includes information, training curriculum, recommendations, and sample forms that can be used to implement limited assistance representation in practice.

Colorado Bar Association, Practical and Ethical Considerations to Integrated Unbundled Legal Services (2015).

  • This Colorado Bar Association Handbook compiles detailed background information and instructions on the practice of unbundling.

Do I need to screen potential clients?

Yes. Some clients may not be suitable for limited scope representation. In most situations, limited representation should be used when an attorney reasonably believes that the client can adequately represent himself or herself in the balance of the matter. Cases involving alleged violent behavior, however, are usually not suitable for partial representation.

You should evaluate whether the potential client has the mental, emotional, and physical capacity to carry out his/her portion of the legal work; has funds to proceed; has reasonable expectations given the facts and circumstances of the case; and is capable of appearing in court on his/her own. You should also determine the relative distribution of power between the parties and whether you think you can work with the client.

Attorneys caution that some potential clients seek unbundled services to avoid compliance with their obligations, e.g., full disclosure, and that evaluating client motivation for seeking limited representation is a necessary screening component.

Resources:

Beverly Michaelis, Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs, Or. St. Bar Bulletin (August/September 2010).

  • This article details how screening is the key to minimizing malpractice exposure in a limited scope representation practice. Michaelis provides a comprehensive list of considerations pertaining to the client and the case, and explores how virtual or online practices can implement unbundled legal services.

Stephanie Kimbro, Limited Scope Legal Services: Unbundling and the Self-help Client (2012).

  • This book provides lawyers from diverse practice backgrounds with practical and tested solutions for incorporating unbundled legal services into their practices. Kimbro includes a checklist for implementation and tips by practice area.

M. Sue Talia & Mary Lavery Flynn, Ltd. Representation Comm., Cal. Comm’n on Access to Justice, Family Law Limited Scope Representation Risk Management Materials.

  • Talia and Flynn provide a comprehensive guide addressing risk management for attorneys engaging in limited scope representation. The guide includes best practices, flow charts, check lists, and samples of fee agreements and client communication letters.

Must the agreement I have reached with my client regarding the scope of representation be in writing?

Although rules of professional conduct do not require it, to minimize future disputes regarding the scope of limited representation, it is essential that your retainer agreement concerning unbundling be in writing and clearly reflect that you will handle certain parts of the matter and that your client will be responsible for the other parts.

Resources:

Nicole Black, Unbundled legal services: Steph Kimbro tells you everything you need to know, MyCase, Feb. 26, 2013.

  • In this interview, well-known author Stephanie Kimbro discusses the fundamentals of unbundled legal services, including the benefits and drawbacks, relevant ethical issues, and foreseeable trends in unbundled legal services. Kimbro also covers the suitability of the virtual law firm to the delivery of unbundled legal services and advises attorneys on how best to implement this model into their practices. 

Stephanie Kimbro, Limited Scope Legal Services: Unbundling and the Self-Help Client (2012).

  • This book provides lawyers from diverse practice backgrounds with practical and tested solutions for incorporating unbundled legal services into their practices. Kimbro includes a checklist for implementation and tips by practice area.

Am I obligated to do anything outside of the agreed upon limited scope?

The duty to communicate requires that the attorney make adequate disclosure to ensure the client understands the limited scope of the representation, as well as the risks and available alternatives to the limited representation.

Resources:

Ronald E. Mallen & Allison Martin Rhodes, Legal Malpractice (2015) (see sec. 8:6 pertaining to Express Limitations on Duty).

  • A retainer or engagement letter not only can define the duties undertaken but also can delimit those duties not to be performed. 

Lerner v. Laufer, 819 A.2d 471, 482 (N.J. Super. App. Div. 2003).

  • In Lerner, the Court immunized the attorney for work outside the written scope agreement in a family law action.

As a limited scope attorney, can I represent both husband and wife in preparing settlements for other agreements necessary for them to get a divorce? Can I provide limited representation to a couple who have agreed on the essential terms of their marital settlement agreement but need a lawyer to put the agreement in proper legal form?

No. The duty to avoid conflicts of interest prevents an attorney from providing unbundled representation to an SRL while simultaneously representing the opposing party, or while owing obligations to another client, former client, or the lawyer’s own interests.

Resources:

Model Rules of Prof’l Conduct § 1.7.

Utah Ethics Advisory Opinion Committee, Advisory Op. No. 05-03, 2005 WL 4748681.

  • In Ethics Advisory Opinion No. 05-03, the Utah Ethics Advisory Board determined that a lawyer may not represent both parties following mediation to obtain a divorce for the parties. Citing Utah Rule of Professional Conduct 1.7(a) and 1.7(b), the Committee decided that a lawyer owes a client a duty of undivided loyalty of counsel. The Committee recognized that there was never a circumstance in which an attorney might ethically represent both parties in a divorce.

Rebecca Aviel, Counsel for the Divorce, 55 B.C. L. Rev. 1099 (2014).

  • While the adversarial system is premised on the foundational assumption that each client must have an attorney advocating on behalf of his or her individualized interests, Aviel argues that in family law cases, partisan advocacy can—and should be—unbundled from legal representation. Couples wishing to retain joint counsel, whether in the name of conflict avoidance or expeditious resolution, should be able to avail themselves of the joint representation alternative.

Can the other side’s attorney communicate with my client if I am providing unbundled services?

Yes, but only concerning matters that have not been assigned to you in your limited scope agreement with your client.

Many jurisdictions have specific rules that allow opposing counsel to assume a person is unrepresented unless the limited scope attorney for the otherwise self-represented party informs him/her otherwise. Similarly, when service is required or permitted on a party represented by a limited appearance attorney, for all matters within the scope of the limited appearance, the service is to be made on the attorney and the party for whom the limited appearance was filed. Service on an attorney with a limited appearance is not required for matters outside the scope of the limited appearance.

If a limited scope attorney (although properly) has not entered an appearance, an opposing attorney/party may fail to communicate directly with the attorney about the discrete issue for which he/she has been retained. Clients must be informed of this risk, fee agreements should carefully outline who will be responsible for communicating with the opposing attorney/party, and arrangements should be made to ensure that the limited scope attorney receives all necessary communication from the client.

Resources:

ABA Standing Comm. on the Delivery of Legal Serv., An Analysis of Rules that Enable Lawyers to Serve Self-Represented Litigants (2014).

  • This ABA White Paper details the ways in which states around the country are drafting or amending rules of conduct and procedure that allow attorneys to provide limited scope representation, including provisions pertaining to communication with persons represented by counsel.

Adam J. Espinosa & Daniel M. Taubman, Limited Scope Representation Under the Proposed Amendment to C.R.C.P. 121 § 1-1, 40 Colo. Law. 89 (Nov. 2011).

  • In this article, Espinosa and Taubman comment favorably on a proposed rules amendment (later adopted as recommended) that would allow for automatic withdrawal for attorneys providing limited scope representation to clients. Among the issues presented by this amendment is communication with an attorney or pro se party in a limited scope representation situation.

Iowa Rules of Prof’l Conduct (2012).

  • Rule 32:4.2 governs communication with persons represented by counsel and sets forth the circumstances under which an opposing lawyer must communicate with the limited representation lawyer.

What do I need to do to properly limit the scope of my services with my client if I am making an appearance with the court?

With some procedural differences, numerous states have court rules/forms for Limited Entry of Appearance.

Examples of these types of forms are linked here and housed on the respective state’s website:

How do I properly terminate my representation with my client if I have made an appearance with the court?

With some procedural differences, numerous states have court rules/forms for Notice of Termination of Appearance in Limited Scope services cases.  

Examples of these types of forms are linked here and housed on the respective state’s website:

What are common but avoidable missteps relating to limited scope representation?

Some of the more common but avoidable traps relating to limited scope representation include:

  • Failing to obtain informed written consent from the client;
  • Failing to file the appropriate entry of appearance form, if necessary;
  • Failing to precisely define or document the scope of engagement, spelling out what you will and will not do for the client;
  • Failing to properly outline in the fee agreement whether you or your client will be responsible for communicating with the other side;
  • Failing to properly ascertain if your limited representation is reasonable under the circumstances;
  • Failing to achieve competence in the area of law in which you are offering unbundled legal representation;
  • Failing to keep your services within the scope of your agreement;
  • Failing to communicate with the client to assure understanding of your partial involvement and the tasks for which the client remains responsible;
  • Failing to properly manage the client’s expectations, including what to expect if the limited representation does not extend to court appearances;
  • Failing to advise your client on related matters, even if not asked;
  • Failing to provide proper documentation, such as memos to the file and confirming emails;
  • Failing to document agreed changes to the representation agreement;
  • Failing to detect conflicts of interest;
  • Failing to ask the right questions or verify the client’s material facts;
  • Failing to effectively/properly disengage and withdraw as attorney of record; 
  • Failing to read the rules and sign the proper forms;
  • Failing to obtain initial and ongoing training about unbundling rules, ethics opinions, laws, and best practices.

While common, these missteps are avoidable with appropriate practices and procedures.

Resources

Beverly Michaelis, Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs, Or. St. Bar Bulletin (August/September 2010).

  • This article details how screening is the key to minimizing malpractice exposure in a limited scope representation practice. Michaelis provides a comprehensive list of considerations pertaining to the client and the case, and details the frequent causes of legal malpractice claims of which the limited scope representation attorney should be aware.

Limited Representation Committee California Commission on Access to Justice, General Civil Limited Scope Representation: Risk Management Materials.

  • This Manual explores issues of liability and good practice in providing unbundled legal services. Sample checklists and agreements are included and can be tailored to the specific needs and circumstances of one’s limited scope representation legal practice.

Where can I find training on providing unbundled legal services?

Resources

Trial Court of Massachusetts, Limited Assistance Representation Training Manual.

  • This Massachusetts Trial Court Training Manual includes information, training curriculum, recommendations, and sample forms that can be used to implement limited assistance representation in practice.

Limited Representation Committee California Commission on Access to Justice, General Civil Limited Scope Representation: Risk Management Materials.

  • This Manual provides information, forms, and checklists that can be tailored to an attorney’s individual limited scope representation practice. 

Minnesota Family Law Limited Scope Representation: Risk Management Materials, Minnesota State Bar Association, Pro Se Implementation Committee (2009).

  • This Manual adapts the work undertaken by the California Commission on Access to Justice, offering a similar resource for Minnesota practitioners.

Where can I find guidance on the nuts and bolts of building an unbundled practice?

There are numerous easily accessible resources which provide comprehensive instruction and information.

Resources:

ABA Section of Litigation, Handbook on Limited Scope Legal Assistance: A Report of the Modest Means Task Force.

  • This Handbook details common steps that experienced limited service lawyers recommend and follow in their practices, pertaining to conflicts, client interviews, problem identification, task identification and allocation, informed consent, and other issues.

Forrest S. Mosten, Ask the Experts: Tips for Unbundling Your Family Law Practice, 10 AFCC eNews (2015).

  • In this article, Mosten provides 35 updated practice tips for starting an unbundled practice.

Stephanie Kimbro, Serving the DIY Client: A Guide to Unbundling Legal Services for the Private Practitioner (2012).

  • This electronic resource contains an extensive discussion on best practices for unbundling, including checking for conflicts, educating clients, fee structure considerations, malpractice insurance, and using technology.

ABA Standing Comm. on the Delivery of Legal Serv., Handbook on Limited Scope Legal Assistance (2003).

  • This handbook, developed by the ABA Modest Means Task Force, discusses all aspects of limited scope representation to aid practitioners in providing this type of legal services. Anecdotes from limited scope representation practitioners are included in the Handbook, and an extensive Appendix contains proposed court rules, sample forms, and pleading templates.

Montana Judicial Branch, Court Administrator’s Office, Attorney LSR Resources.

  • This Montana Judicial Branch website contains extensive resources on limited scope representation, including guides and manuals, training materials, and sample retainer agreements.

Colorado Bar Association, Practical and Ethical Considerations to Integrated Unbundled Legal Services (2015).

  • This Colorado Bar Association Handbook compiles detailed background information and instructions on the practice of unbundling.

Trial Court of Massachusetts, Limited Assistance Representation Training Manual.

  • This Massachusetts Trial Court Training Manual has sample forms and checklists for navigating an unbundled legal services practice and creating an appropriate client file.

Limited Representation Committee California Commission on Access to Justice, General Civil Limited Scope Representation: Risk Management Materials.

  • This Manual provides information, forms, and checklists that can be tailored to an attorney’s individual limited scope representation practice. 

Minnesota Family Law Limited Scope Representation: Risk Management Materials, Minnesota State Bar Association, Pro Se Implementation Committee (2009).

  • This Manual adapts the work undertaken by the California Commission on Access to Justice, offering a similar resource for Minnesota practitioners.