Scope Limitations and Legal Ghostwriting
Background
As financial pressure from the Great Recession becomes the new normal and even the least tech-savvy Americans tackle most errands from behind a computer screen, consumers have cast a critical eye toward the traditional attorney-client relationship. For many, the cost of a full-service representation creates a barrier to any legal services at all, resulting in a growing army of pro se litigants who frustrate lawyers, exhaust court personnel, and seldom achieve their goals.
Enter the limited scope representation (“LSR”), often referred to as “unbundling,” “limited legal assistance” or “discrete task representation,” where an attorney provides certain services and excludes others for a lower overall fee. This arrangement has long existed in the transactional realm but has become increasingly common in litigation, particularly in family law, landlord-tenant, and small personal injury and property damage claims.
In reality, the scope of every representation is limited to some degree. Every engagement letter should contain a provision on scope, whether it clarifies that a workers’ compensation lawyer will not advise on potential third-party claims, or that a divorce lawyer will not draft a qualified domestic relations order. An LSR in the context of a would-be pro se, consumer client, however, refers to a relationship where the attorney and client split tasks in the case, or the client agrees to handle the lion’s share.
A full-service representation typically consists of fact-gathering, legal advice, discovery, legal research, correspondence, document drafting and filing, negotiation, and in-court appearances. An LSR might include any one or combination of these duties, during a defined phase of the matter or as a one-time event. The LSR is a powerful tool that allows attorneys to generate business that they could not otherwise reach and clients to access a level of service that they could not otherwise afford. Attorneys must tread carefully however, especially in areas where these more severe limitations on scope have only recently taken hold.
Client and Case Selection
American Bar Association Model Rule 1.2(c) permits an attorney to limit the scope of a representation as long as the limitation is “reasonable” and the client gives informed consent. This rule,
which has been adopted in all but a handful of states, provides the basis, and defines the boundaries, of any LSR.
What is a “reasonable” limitation on a lawyer’s services? Two broad categories inform the reasonableness of a limitation: the complexity of the matter and the capabilities of the client. The
purposes behind easing ethical and court rules to allow for more LSRs—to help pro se individuals achieve their legal goals and ease the burden on the court system—are not fulfilled where a client is left stranded midway through an engagement with no reasonable chance for success.
