Bar News - June 17, 2005
Court Committee Considers Rules on Limited Appearances in Litigation
By: Dan Wise
The NH Supreme Court Advisory Committee on Rules’ effort to explicitly allow "unbundling" or limited-scope representation in litigation and other legal matters was heartily endorsed by most speakers at a June 1 public hearing,
Representatives of the Pro Bono Referral Board and the NHBA Ethics Committee and other speakers suggested a number of changes to enhance the attractiveness of the option for attorneys without jeopardizing the quality of representation.
(At the hearing, the Committee also received comments on changes to Supreme Court Rule 53 that have been proposed by the NH Minimum Continuing Legal Education Board. See page 21. Concerns also were raised about the impact of the Supreme Court’s non-discretionary acceptance policy on appeals of eviction actions. See page 24.)
In March, the Rules Committee proposed procedural and ethical rule changes to encourage lawyers to provide limited-scope representation in litigation. However, at the public hearing, Keene attorney John Norton, chair of the Pro Bono Board, said the rule changes would not go far enough to truly facilitate limited-scope representation at lower cost to litigants. The Pro Bono Board advocates the addition of court rules that specifically would allow for attorneys to enter limited appearances and exit the cases at a specified point, without requiring the approval of the court, as is required now.
The Ethics Committee also suggested a number of revisions in a detailed presentation that incorporated its work on revising and updating the Rules of Professional Conduct. (That draft is available at www.nhbar.org and upon completion this fall will then be presented to the Rules Committee as well.) In advance of the Rules Committee meeting, members of the Ethics and the Pro Bono Board collaborated on reviewing the changes and incorporating material from the recent ABA report, "An Analysis of Rules that Enable Lawyers to Serve Pro Se Litigants." Norton, also a member of the Ethics Committee, said the report by the ABA’s Standing Committee on Delivery of Legal Services, provided a survey of other states’ rules and general approaches. That enabled the NHBA drafters to craft what Norton believes is a "best practices" approach to limited representation.
The Ethics Committee recommended that the Rules Committee drop its proposed version of Rule 1.1. (b)(4) which lowers the standard for competency in limited representation situations, in part, the Ethics Committee said, "because this could lower the standard in transactional work, where limited representation is the norm," according to an Ethics Committee memo. Instead the Ethics Committee proposed adding a new, second sentence to the ABA Model Rule 1.2(c) clarifying that the application of all ethical rules would be viewed in context of the specific limited representation undertaken (as explained in its proposed NH Comment to this Rule).
A key change advocated by the Ethics Committee was an added Rule 1.2(f) specifically addressing litigation that would add to the requirements of the general limited representation Rule 1.2(c). (See accompanying text.) This rule would authorize attorneys to provide limited representation to a pro se client based on full disclosure and informed consent, adopt a court-approved form for this purpose, and address the ghostwriting issue for attorneys who assist a litigant with the writing of a pleading, consistent with whatever resulting court procedural rules that may be adopted, and as were proposed by Pro Bono.
Pro Bono did not propose only one solution; instead, it presented, as a policy choice, three options for ghostwriting court procedural rules :the pro se litigant need not disclose whether an attorney participated in the drafting of a pleading; the pro se litigant must state on the pleading that it was prepared by an attorney licensed in NH; or the NH-licensed attorney assisting in the writing of a pleading must be identified by name.
Norton, whose comments were echoed by Nashua attorney Honey Hastings who also testified at the hearing, said it was extremely important that court rules be in place that would allow "easier entry and exit" from appearances in court – specifically, that an attorney can enter a limited appearance for a particular stage of a case and when that stage is completed, the attorney can terminate the appearance "without the necessity of leave of the court."
Michael K. Skibbie, an attorney with the Disabilities Rights Center and the former executive director of the NH Public Defender, also spoke, saying that it would be important to exempt criminal and other matters where constitutional right to counsel exists (such as involuntary commitments) from the limited appearance rules. He suggested that limited appearances could seriously impair the overall competence of the criminal representation now provided by single attorney representation throughout the criminal proceeding.
The Ethics Committee also commented and revised a new Rule 6.5 to cover Nonprofit and Court-Annexed Limited Legal Services Programs, that provides a slightly more relaxed version of conflict rules for attorneys who participate in "one-time consultation with a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation." This rule is intended to cover "clinics" or "lawyer in the courthouse" types of programs where attorneys would volunteer to review documents or provide advice on a one-time basis to pro se litigants under the auspices of a Bar, legal services or court-organized program.
The Rules Committee, chaired by Justice Linda S. Dalianis, will deliberate on the information provided and may have a new draft ready for its next meeting in September, said David Peck, deputy Supreme Court Clerk and Reporter of Decisions. The Committee’s next meeting is Sept. 7.
The Pro Bono Board applauded the Rules Committee for taking the initiative in drafting the rule—a key recommendation of the "Challenge to Justice" Task Force on Self-Represented Litigants, which reported in 2004. Pro Bono, Norton said, sees limited-scope representation as a means of meeting the widening gap between the number of attorneys willing and able to contribute precious hours to provide pro bono representation in the traditional "one-lawyer-one-case" model, and the increasing number of litigants with critical legal needs.
Virginia A. Martin, NHBA Associate Executive Director for Legal Services, who oversees the Pro Bono program, also spoke, saying that information from other jurisdictions—gleaned from a recent ABA report on the subject of "unbundled" legal services —indicates that offering limited-scope representation widens the market for legal services. She said offering limited representation does not appear to divert clients who normally would seek or can afford full representation, but provides options for clients of limited means to have at least partial representation, and who would otherwise proceed as pro se or would simply not pursue their legal need.
Proposals for Rules on Limited Representation
The current rule:
Rule 1.2. Scope of Representation
(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
- (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
- (c) A lawyer may limit the objectives of the representation if the client consents after consultation. **(See proposed revisions below.)
- (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
- (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client regarding the relevant limitations on the lawyer’s conduct.
Advisory Committee on Rules proposal:
Amend Professional Conduct Rule 1.2(c) by deleting said subsection and replacing it with the following:
(c) Limited Representation. A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client provides informed consent after consultation. If, after consultation, the client consents in writing (a sample form is set forth in section (f) of this rule), an attorney may enter a limited appearance on behalf of an otherwise unrepresented party involved in a court proceeding. A lawyer who signs a writ, petition, counterclaim, cross-claim or any amendment thereto which is filed with the court, may not thereafter limit representation as provided in this rule.
Ethics Committee Proposal:
Recommended Professional Conduct Rule 1.2(c):
Limited Representation. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. In providing limited representation, the lawyer’s responsibilities to the client, the court and third parties remain as defined by these Rules as viewed in the context of the limited scope of the representation itself; and court rules when applicable.
Recommended NH Comment to Rule 1.2(c)
The second sentence of Rule 1.2(c) confirms that lawyers providing limited representation are bound by all professional responsibility rules. The rule also recognizes that these ethical obligations will need to be interpreted, or analyzed, within the context of the limited representation. One example of such an obligation could be the duty, under Rule 1.1(c)(3), to "develop a strategy, in collaboration with the client, for solving the legal problems of the client". A client who retains an attorney for limited purposes may simply want the lawyer to research and provide the applicable law in a specific area, thereby making Rule 1.1(c)(3) inapplicable. Conversely, the lawyer’s duty pursuant to Rule 4.1(a) not to make false statements to third persons is the type of fundamental obligation that would remain applicable regardless of the limits placed on the scope of representation.
Recommended Rule 1.2(f):
Limited Representation in Litigation. In addition to requirements set forth in Rule 1.2(c),
- a lawyer may provide limited representation to a client who is or may become involved in a proceeding before a tribunal (hereafter referred to as litigation), provided that the limitations are fully disclosed and explained, and the client gives informed consent to the limited representation. The form attached as Appendix I to these Rules has been created to facilitate disclosure and explanation of the limited nature of representation in litigation.
- a lawyer who has not entered an applicable limited appearance, and who provides assistance in drafting pleadings, shall advise the client to comply with any rules of the tribunal regarding participation of the lawyer in support of a pro se litigant.
Visit www.nhbar.org under Legal Links for Ethics/Professionalism resources such as the Ethics Committee’s rules revisions and the full text of the Bar committees’ responses to the Advisory Committee on Rules proposals.