Limited Scope Representation has grown in popularity over the last decade. Proponents advocate that limited scope representation expands the public’s access to legal services, reduces the number of unrepresented litigants in court, and helps deliver better results to consumers. Also known as “unbundled legal services” or “discrete task representation,” the Ohio Rules of Professional Conduct changed in 2007 to explicitly allow limited scope representation. But with this change and availability of consumer-driven legal services comes specific considerations to keep in mind. This article addresses the “6 Cs” of Limited Scope Representation to help you take full advantage of the benefits and avoid potential pitfalls.
What is “Limited Scope Representation”?
In contrast with traditional representation where the attorney does not restrict the scope of services performed to represent the client in a particular matter, “limited scope” sets clear boundaries and parameters on what work the attorney will do. Some examples of limited scope may be more familiar, such as a comprehensive but one-time consultation between the attorney and client, or to draft a letter at the request of a client. But attorneys can also provide limited services such as appearing with a client at mediation (but not entering an appearance in further litigation), assisting with drafting discovery demands, or coaching a client who intends to appear pro se at an administrative hearing.
The Six Cs of Limited Scope Representation
Professional Conduct Rule 1.2(c) explicitly permits a lawyer to limit the scope of a new or existing representation if the limitation “is reasonable under the circumstances and communicated to the client, preferably in writing.” Comments 7 and 7A to Rule 1.2 expand on the Rule’s reference to reasonableness and the preference for the limited scope engagements to be in writing. Rule 1.2 and its comments establish not just the requirements, but also best practices when endeavoring to limit the scope of representation in a matter.
- Competence: Limited scope does not reduce or eliminate the need for an attorney to be competent in a particular area of law. In fact, it might be best to be highly comfortable in a particular area of law when evaluating the appropriateness of limiting a scope. For example, an attorney who does not practice family law may not have the depth of knowledge in order to advise a client who wishes to self-represent in an administrative child support hearing, and an estate planning attorney may not be comfortable in guiding a defendant through pro se appearance at a traffic arraignment.
- Communication: As with managing all client relationships, communication takes center stage in establishing limited scope representation. Not only should the exact scope of work be communicated (more on this under “Checklist”) but the challenges, limitations, and potential discomfort the client may face due to limited scope should be discussed. If the client is not comfortable with direct communication with a represented or unrepresented opposing party, communicating that early could lead to determining a different scope of representation. As emphasized in Prof. Conduct R. 1.2(c), communication should be in writing, particularly communication regarding the scope of the lawyer’s tasks.
- Conflicts of Interest: Conflicts are conflicts are conflicts. If it would have been a conflict of interest in traditional full-scope representation, it’s still a conflict of interest in limited scope. Don’t forget to check for conflicts before all legal engagements, even if it’s short-term or limited scope.
- Complexity: In analyzing whether circumstances are reasonable to limit scope of representation, the complexity of the legal situation must be evaluated. Some straight-forward legal matters may be easily resolved with a letter or through supporting a pro se party through a limited administrative process, but that may not fit all circumstances. Engaging in that analysis with the client can lead to a good foundation for both the attorney’s scope of work and the future attorney-client relationship.
- Client Capacity: The client’s capacity is another factor in assessing the reasonableness of establishing a limited scope representation agreement. This could include cognitive or language capabilities, emotional and psychological availability to accept stressors, familiarity with legal problems or experience with past legal matters, and other factors. The Board of Professional Conduct also recommends considering the client’s “technological skills and resources” if electronic communication or e-filing might be necessary.
- Checklist: Finally, the use of checklists is discussed and recommended as a potential tool to clearly communicate the scope of what the lawyer will handle and the work that the client may need to do on their own. This can help reduce confusion or disagreement over which tasks were assigned to the attorney. Completing and reviewing the checklist may be part of concluding the representation.
There are a number of resources readily available to assist attorneys in establishing limited scope representation. Currently, the Ohio Bar has a one hour CLE on Limited Scope Representation (see link below) that is complimentary to its members ($65 for nonmembers). The Board of Professional Conduct has published an extensive Ohio Ethics Guide on Limited Scope Representation, which was used as the foundation for this article. This Guide includes appendices with sample documents, including the task checklist. Finally, OBLIC provides a sample Limited Scope Representation Agreement Template. We encourage you to take advantage of these resources when considering limited scope representation with your clients.
Connecting with Clients through Limited Scope Representation 1.0 Hour CLE from the OSBA (Complimentary for OSBA Members)
Ohio Ethics Guide on Limited Scope Representation from the Board of Professional Conduct
Sample Limited Scope Representation Agreement Template from OBLIC
As always, if we can help further, please contact us!
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.