President's Message November/December 2015

Changes in How We Practice: Limited Scope Representation is Here

Melissa E. Darigan, Esq.
President, Rhode Island Bar Association

Limited Scope Representation is expanding into the courtroom where arguably affordable and competent representation is most needed, but where the playing field is not well defined and the potential for controversy is greatest. 

If you’ve been reading any law-related publications, you know changes in the legal profession are common themes, among them, the burgeoning number of unrepresented litigants in the courts.  These litigants include those who cannot afford a lawyer and do not qualify for legal aid or who find that legal assistance programs are overstretched due to decreases in budget or personnel. Increasingly in the last decade, they also include the middle-class and small business owners who are without sufficient resources to pay for traditional full-scope legal services. Many who are left to go it alone do it in cases involving life-altering situations like divorce, child custody and housing.

The gap between the need for legal assistance and the availability of legal services is felt across the nation and in Rhode Island. Spend just one day at the Garrahy Complex and you will see the challenges pro se litigants pose to our judges and clerks, fellow litigants and their counsel.  One tool for addressing the growing unrepresented population is Limited Scope Representation, sometimes known as unbundling. This is permitted by Rhode Island Rule of Professional Conduct 1.2(c), but, until recently, has received very little attention.

That changed this past year when the Rhode Island Supreme Court issued an opinion on ghostwriting as a form of Limited Scope Representation and set forth guidelines for that practice.  FIA Card Services, N.A. v. Pichette, 116 A.3d 770 (RI 2015).  In this opinion, the Court also noted the lack of current parameters for Limited Scope Representation and invited comments from stakeholders throughout the profession.  As reported in my last President’s Message, our Bar Association has formed an ad hoc committee to develop recommendations for the Court and hopes to play an important role in the rule-making process on Limited Scope Representation.

So what is Limited Scope Representation anyway?  Put simply, it is a method of legal representation where the attorney and client agree to limit the scope of that attorney’s involvement in a legal proceeding, leaving responsibility for the other aspects of the case to the client.  In some ways, this is not a new concept.  Business lawyers routinely provide clients with discrete legal services such as reviewing contracts or providing tax advice.  Legal aid and volunteer attorneys often assist on one aspect of a case. And, anyone who has provided legal advice at an initial consultation that never went any further has provided a form of unbundled services.

What is different now is that Limited Scope Representation is expanding into the courtroom where arguably affordable and competent representation is most needed, but where the playing field is not well defined and the potential for controversy is greatest.  When is limited representation in the litigation context reasonable?  How is the engagement to be documented?  What must lawyers disclose, when and to whom?  And how do lawyers enter and, more importantly, exit a case?

Our Bar Association believes having clear guidelines to assist our members, the courts and the public are key to creating a framework where Limited Scope Representation can be a win-win-win.  Litigants win by having some representation, at a price they can afford, versus doing it all themselves.  For lawyers, there are potential new business opportunities, as many clients attracted to Limited Scope Representation would otherwise not use an attorney at all.  Limited engagements may create a revenue stream along with opportunities for new relationships which could translate to full scope representation in future cases or referrals.  This practice may also reduce receivables and limit lawyers’ financial risk.  And, as found in many states, including our New England neighbors, the judicial system wins.  Limited Scope Representation can result in better educated clients and more realistic litigants, better pleadings and reduced frivolous filings, and a smoother, more predictable litigation process.

For sure, there are difficulties to the practice of Limited Scope Representation.  Without good communications, the lines between an attorney’s responsibility and the client’s can be blurred.  Litigants who use lawyers only for drafting may not be prepared to present in court and, without attorney oversight, defenses could be missed or complex issues poorly presented.  Limited Scope Representation also challenges the legal profession’s long-rooted practices and beliefs that our ethical duty requires an all-inclusive approach, and that the lawyer is in for all purposes. Some believe attorneys and the courts devalue the services of an attorney when they permit cases to be handled piecemeal, or the system will become so user-friendly attorney services will not be needed.  And others think judges, who are lawyers after all and steeped in precedent, will not embrace limited representation of clients in litigation and exiting from cases.

I don’t discount these sentiments at all and agree there are challenges to this way of practicing.  But, from all indications, Limited Scope Representation is an economic necessity and reality, and it is here.  In my view, this is not the time to debate whether limited attorney engagements should be permitted – they are.  Now is the time to develop good, practical and clear rules and effective training and education at all levels.

Limited Scope Representation will not be for everyone – for every attorney, every type of case or every client.  But there are many instances where the ability to obtain some legal advice is better for all parties involved.  The Court’s invitation to comment on Limited Scope Representation is a unique opportunity for our Bar Association to promote the interests of our members by helping to develop the regulatory framework for how to practice in this way.  As your Bar Association, it is also our responsibility.