Understanding Limited Scope Representation in Legal Matters
Limited Scope Representation, also known as unbundling, is a practice where an attorney and a client agree that the attorney will handle specific aspects of a legal matter, rather than the entire case. This approach offers flexibility, cost-effectiveness, and increased client control. Judges play a crucial role in recognizing and accommodating the needs of self-represented litigants who may benefit from unbundled legal services.
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LIMITED SCOPE REPRESENTATION What judges need to know about unbundling
WHAT IS UNBUNDLING? Limited scope representation (unbundling) is occurs when an attorney and a client agree that the attorney will perform some, but not all, aspects of a legal matter.
TYPES OF UNBUNDLING Discrete Task or Ghostwriting: when an attorney provides consultation and legal advice, document review, or ghostwriting (drafting). Colo. RPC 1.2(c) C.R.C.P. 11 and C.R.C.P. 311 Limited Appearance: when an attorney enters an appearance on behalf of a client in court or at mediation. C.R.C.P. 121
DISCIPLINE OR MALPRACTICE Unbundling not seen as problem: Office of Attorney Regulation National Organization of Bar Counsel (NOBC). Malpractice Carriers
NEED FOR UNBUNDLING BURDEN ON JUDGES AND COURT STAFF Number self-represented litigants (FY 2015) 69,951 parties in DR cases in CO 75% parties did not have attorney enter appearance Respondents in DR, District Civil, and County Civil 89% parties did not have attorney enter appearance
NEED FOR UNBUNDLING BURDEN ON JUDGES AND COURT STAFF Self-represented litigants Uniformed Unprepared Overwhelmed Judges and court staff (including sherlocks) can t provide legal advice
NEED FOR UNBUNDLING FOR ATTORNEYS AND CLIENTS Cost for full-service legal representation Growing demand by the client for control over their legal issues Changing practice of law
RULES Colo. RPC 1.2(c) and Colo. RPC 1.0(e) = permission to unbundle C.R.C.P. 11(b) and 311(b): Pleadings C.R.C.P. 121, 1-1(5): Court appearance C.A.R. 5(e): Colorado appellate rule D.C.Colo.Latty R2 and R5: US District Court
COLORADO RULES OF PROFESSIONAL CONDUCT Colo. RPC 1.2(c) Permits limited scope representation Reasonable under the circumstances. Informed consent of client. Agreement should be in writing, signed by both parties.
INFORMED CONSENT "Informed consent" agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Colo. RPC 1.0 (e)
DRAFTING PLEADINGS (GHOSTWRITING) Ghostwritten pleadings must comply with C.R.C.P. 11(b) and 311(b): Must include name, address, telephone # and bar # Certify that the pleading or paper is: Well grounded in fact based on reasonable inquiry. Warranted by existing law or a good faith argument for extension. Is not made for an improper purpose, or to harass, delay, etc. Exception for pre-printed judicial (JDF) forms Not an entry of appearance
COLORADO RULES OF CIVIL PROCEDURE 121 1-1(5) Limited representation of a pro se party in a court proceeding at the request AND with consent of client. File notice of limited appearance prior to or simultaneous with proceeding. (JDF 630, 1334/1335) Attorneys role terminates without leave of court and upon filing a notice of completion. (JDF 632, 642, 1336)
COLORADO RULES OF PROFESSIONAL CONDUCT Limiting scope limiting obligations under Rules of Professional Conduct or Rules of Civil Procedure Limited scope = Attorney/client relationship
COLORADO APPELLATE RULE 5(E) C.A.R. 5(e): limited scope representation in the Colorado Court of Appeals and Colorado Supreme Court: request and with the consent of a pro se party, terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO D.C.Colo.LAttyR5 (a)(2): Unbundling is allowed whenthere is a court order granting permission. the scope of limited representation must be defined in motion and any change to scope must be approved again by court. Unbundling lawyer must file a motion to withdraw after completing limited representation
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO D.C.Colo.LAttyR5 (a)(3): entry of appearance or initial pleading must contain: the identity of the party for whom the appearance is made; the firm name, office address, telephone number, and primary CM/ECF e-mail address of the attorney; and the certification of the attorney that the attorney is a member in good standing of the bar of this court.
JUDICIAL LEADERSHIP ON UNBUNDLING Securing access to justice is a fundamental goal and responsibility of judicial leadership. Judicial support is absolutely essential for unbundled legal services to take hold. Unbundling has been increasingly used and accepted in the last several decades. Unbundling can increase the number of prepared litigants and result in more available docket, court staff, and judge time.
JUDICIAL LEADERSHIP ON UNBUNDLING Colorado Supreme Court supports unbundling Assure lawyers that the court will allow lawyers to withdraw after completion of limited scope representation. Refer lawyers to the court approved forms Educate the public about the availability of unbundling. Educate court staff about unbundling
JUDICIAL LEADERSHIP ON UNBUNDLING Work with CBA s Modern Law Practice Initiative to schedule an unbundling presentation in your area, including one specifically geared to young lawyers. Work with local bar associations and local access to justice committees to develop lists of lawyers offering unbundled services, including encouraging use of CBA s Find-a-Lawyer. Encourage self-represented litigant coordinators (sherlocks) and family court facilitators, when appropriate, to refer self-represented litigants to lawyers providing unbundled services.
TIPS FOR JUDGES FROM JUDGES Communication by judge With pro se party? With limited scope attorney? Judge must clarify scope of limited representation with pro se party and attorney Judge must ensure notices of hearing, decisions, etc., are sent to correct party
TIPS FOR JUDGES FROM JUDGES Communication with attorney providing full representation Ensure he or she knows scope of limited representation Opposing attorney must communicate with limited scope attorney on issues of limited representation Opposing attorney must communicate with pro se attorney regarding other issues.
DISCUSSION What is going well with unbundling? What is not going well with unbundling?
