Courts are facing an unprecedented number of pro se litigants. Whether due to the economy, a changing attitude over litigation, technology, or other causes, courts flooded with pro se litigants have struggled to come up with a solution. In certain practice areas such as family law and property cases a high percentage of all suits involve at least one unrepresented party. This places an administrative stress on the courts. Some jurisdictions are experimenting with a potential answer to the “pro se problem” through the use of limited scope representation or “unbundled” legal services. The idea is to reduce the costs of representation and increase access to the courts. This is appealing to an overburdened court but poses some significant ethical issues for attorneys.
Limited scope representation allows clients to assign particular tasks, within a proceeding or transaction, to an attorney. That attorney is therefore only bound to complete that limited assignment, presumably for a reduced fee, as opposed to handling the entire proceeding. This concept has rich benefits such as providing more access to the courts. As a result, Connecticut, for example, has recently started a pilot program in family court permitting unbundled legal services in family cases. Similarly, in early 2013, the ABA adopted a resolution encouraging lawyers to “consider limiting the scope of their representation” and “unbundling of legal services as a means of increasing access to legal services.”
While these programs have certain benefits, there are ethical and liability issues for attorneys that must be considered. An overarching ethical problem associated with limited-scope representation is aligning a client’s expectations with the unbundled service. The client may expect that her retention of an attorney will alleviate all of her concerns, when the reality is that the attorney was only engaged for a limited task. Model Rule of Professional Conduct 1.2 governs the scope of representation and addresses this issue. Generally, according to that Rule, limited scope representation is acceptable “if the limitation is reasonable under the circumstances and the client gives informed consent.” Thus, communication is a key.
To avoid claims in limited scope representation matters, attorneys should carefully evaluate the client’s expectations to ensure that the services can be unbundled and meet the expected result. Attorneys should have a procedure in place as to how the service will be unbundled. Attorneys should carefully explain to their clients and reduce to writing the scope of their representation. Moreover, attorney should be familiar with the local rules governing the jurisdiction in which they practice to ensure compliance with all applicable rules.