New Illinois Rules on Limited Scope Representation

New Illinois Rules on Limited Scope Representation Patricia A. Wrona CARPLS LEGAL AID 12/12/13

The history of limiting the scope of legal representation in Illinois • FORMER Illinois Rule of Professional Conduct 1.2(c) (pre-2010) provided that: • “A lawyer may limit the objectives of the representation if the client consents after disclosure.”

What have other states been doing? • 40 other states have ethical rules that substantially follow the ABA Model Rule 1.2(c) which permits “limited scope representation.” • ABA Model Rule 1.2(c) provides: • “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

2010 Changes to Illinois Rule 1.2(c) • In 2010, Illinois in effect followed the ABA Model rule. • Now Illinois Rule of Professional Conduct 1.2(c) provided that: • “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

Comments to Rule 1.2(c) • Comment (6): • “…may be limited by agreement with the client or by terms under which the lawyer’s services are made available to the client.” (ex. counsel provided by insurance carrier). • “…maybe be appropriate because the client has limited objectives to the representation.” • “…limitations may exclude actions that the client thinks are too costly….”

What is “reasonable” under the circumstances? • Comment 7: • “…if…the client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, …the services may be limited to a brief telephone consultation.” • “…would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.” • “…does not exempt a lawyer from the duty to provide competent representation.”

“Unbundling” • Offering limited scope legal services are often referred to as “unbundling” of legal services—giving the client only the service he wants/can afford. • Generally unbundling means that a lawyer will provide representation in only specific parts or tasks of a legal matter, with the client self-representing in the other aspects of the case.

Is unbundling actually something new? • Business lawyers have been giving “just” advice, or “just” reviewing contracts, or “just” drafting a form contract for later use • Legal aid lawyers have been “just advising” indigent pro se litigants for years • Anyone who has ever “just” given legal advice to a client has provided an unbundled legal service • Taking on a matter for the purposes of settlement only is another example

What about drafting pleadings? • Even the drafting of pleadings by an attorney for a client to use pro se has been permissible, as long as the client was fully informed of the consequences and the lawyer took the steps to avoid any foreseeable prejudice to the client. • --ISBA Advisory Opinion of Prof. Conduct 849 (1983) (attorney may limit representation to drafting of divorce pleadings for client).

Why wasn’t Rule 1.2(c) enough? • While the Rule 1.2 change gave more clarity to limited representation, the other court rules did not provide the additional court procedure by which to use Rule 1.2 (c) effectively • It particularly needed clarification/process in the context of court litigation

What motivated the rule amendments? • There are increasing numbers of pro se litigants in our courts trying to do it “on their own” • The increasing need for more legal aid assistance but decreasing supply of legal aid resources • Need for greater clarity in what was permitted (lawyers are risk adverse) • Help the court burdened by so many pro se litigants • Need for increased business opportunities for lawyers

The key problem • To represent a client in a limited way in litigation, the lawyer had to file an appearance, and then be permitted by the court to withdraw • There was the very real possibility that the court would not permit the attorney to withdraw • There was no assurance to the attorney or the client that the limitation they had forged would be honored by the court • We all know horror stories of attorneys who have not been permitted to withdraw from a matter, and were in “involuntary servitude” to the client due to the court’s order • Some rule changes were needed to make this work

What happened? • Changes to the procedural rules on the filing of appearances, and withdrawal of appearances, would be needed to make Rule 1.2(c) really work in a litigation context • The Lawyers’ Trust Fund, along with the Chicago Bar Association, Illinois Judges Association, and the Illinois State Bar Association formed a “Joint Task Force on Limited Scope Legal Representation” to propose such rule changes to the Illinois Supreme Court • To bring Illinois in line with 18 other states that have enacted/adopted court and ethics rules to accommodate limited scope representation.

Procedural rules needed to follow limited scope representation • After consideration of the situation by the Illinois Supreme Court, effective July 1, 2013, several rule changes were made that set out the procedure for limited representation appearances in the Illinois courts.

Examples of Limited Scope Representation • Just arguing a motion the client has drafted • Drafting a motion to be argued by the client • Just drafting pleadings (complaint/answer) for a client to file pro se • Representation at a deposition • Representing the client for a difficult phase of a case (ex. child custody proceedings, or discovery) • Representing the client for trial only

Rule 13(c) Amendment • (6) Limited Scope Appearance. An attorney may make a limited scope appearance on behalf of a party to a civil proceeding pursuant to Rule of Professional Conduct 1.2(c) when the attorney has entered into a written agreement with that party to provide limited scope representation. The attorney shall file a Notice of Limited Scope Appearance in the form attached to this rule, identifying each aspect of the proceeding to which the limited scope appearance pertains.

Rule 13(c) (6) con’t. • An attorney may file a Notice of Limited Scope Appearance more than once in a case. An attorney must file a new Notice of Limited Scope Appearance for any additional aspect of the proceeding in which the attorney intends to appear. A party shall not be required to pay more than one appearance fee in a case.

Key Points on Appearing • Must file a Notice of Limited Scope Appearance • May file more than one notice of limited scope appearance in a case • Party only pays one appearance fee in the case

Rule 13(7)--Withdrawal • (7) Withdrawal Following Completion of Limited Scope Representation. Upon completing the representation specified in the Notice of Limited Scope Appearance filed pursuant to paragraph (6), the attorney shall withdraw by oral motion or written notice as provided in parts (i)-(ii) of this paragraph. A withdrawal for any reason other than the completion of the representation shall be requested by motion under paragraph c (2) and c (3) [by way of a motion to withdraw].

Subsection (i) • (i) If the attorney completes the representation at or before a court hearing attended by the party the attorney represents, the attorney may make an oral motion for withdrawal without prior notice to the party the attorney represents or to other parties. The court must grant the motion unless the party objects on the ground that the attorney has not completed the representation. The order granting the withdrawal may require the attorney to give written notice of the order to parties who were neither present nor represented at the hearing. If the party objects that the attorney has not completed the representation, the court must hold an evidentiary hearing on the objection, either immediately or on a specified later date. After hearing the evidence, the court must grant the motion to withdraw unless the court expressly finds that the attorney has not completed the representation specified in the Notice of Limited Scope Appearance.

Subsection (ii) • (ii) An attorney also may withdraw by filing a Notice of Withdrawal of Limited Scope Appearance in the form attached to this rule. The attorney must serve the Notice on the party the attorney represents and must also serve it on other counsel of record and other parties not represented by counsel, unless the court by order excuses service on other counsel and other parties. The attorney must also serve the Notice on the judge then presiding over the case. The attorney must file proof of service in compliance with this paragraph. Within 21 days after the service of the Notice, the party may file an Objection to Withdrawal of Limited Scope Appearance in the form attached to this rule. The party must serve the Objection on the attorney and must also serve it on other counsel of record and other parties not represented by counsel unless the court by order excuses service on other counsel and other parties. If no timely Objection is filed, the attorney’s limited scope appearance automatically terminates, without entry of a court order when the 21-day period expires. If a timely Objection is filed, however, the attorney must notice a hearing on the Objection. If the ground for the Objection is that the attorney has not completed the representation specified in the Notice of Limited Scope Appearance, the court must hold an evidentiary hearing. After the requisite hearing, the court must enter an order allowing the attorney to withdraw unless the court expressly finds that the attorney has not completed the representation specified in the Notice of Limited Scope Appearance.

Commentary to Rule 13 • An attorney making a limited scope appearance in a civil proceeding must first enter into a written agreement with the party disclosing the limited nature of the representation. • The limited appearance is then effected by using the form Notice of Limited Scope Appearance appended to this Rule. • Utilizing this standardized form promotes consistency in the filing of limited scope appearances, makes the notices easily recognizable to judges and court personnel, and helps ensure that the scope of the representation is identified with specificity. • A party on whose behalf an attorney has filed a Notice of Limited Scope Appearance remains responsible, either personally or through an attorney who represents the party, for all matters not specifically identified in the Notice of Limited Scope Appearance. • Paragraph (c)(6) does not restrict • (1) the number of limited scope appearances an attorney may make in a case • (2) the aspects of the case for which an attorney may file a limited scope appearance such as, for example, specified court proceedings, depositions, or settlement negotiations, or • (3) the purposes for which an attorney may file a limited scope appearance.

Comments (con’t). • two alternative ways for an attorney to withdraw when the representation specified in the Notice of Limited Scope Appearance has been completed. • The first method—an oral motion—can be used whenever the representation is completed at or before a hearing attended by the party the attorney represents. Prior notice of such a hearing is not required. The attorney should use this method whenever possible, because its use ensures that withdrawal occurs as soon as possible and that the court knows of the withdrawal. • The second method—filing a Notice of Withdrawal of Limited Scope Appearance—enables the attorney to withdraw easily in other situations, without having to make a court appearance, except when there is a genuine dispute about the attorney’s completion of the representation. The Notice must be served on the party represented and on other counsel of record and other parties not represented by counsel unless the court excuses service on other counsel of record and other parties not represented by counsel. The Notice must also be served on the judge then presiding over the case to ensure that the judge is made aware that the limited scope representation has been completed, subject to the client’s right to object. The attorney’s withdrawal is automatic, without entry of a court order, unless the client files a timely Objection to Withdrawal of Limited Scope Appearance. • If the attorney makes an oral motion to withdraw pursuant to paragraph (c)(7)(i), with or without client objection, or if the client files a timely Objection to Withdrawal of Limited Scope Appearance pursuant to paragraph (c)(7)(ii), the court must allow the attorney to withdraw unless the court expressly finds that the attorney has not completed the representation specified in the Notice of Limited Scope Appearance. An evidentiary hearing is required if the client objects to the attorney’s withdrawal based on the attorney’s failure to complete the representation. A nonevidentiary hearing is required if the client objects on a ground other than the attorney’s failure to complete the representation, although the primary function of such a hearing is to explain to the client that such an objection is not well-founded. A court’s refusal to permit withdrawal of a completed limited scope representation, or even its encouragement of the attorney to extend the representation, would disserve the interests of justice by discouraging attorneys from undertaking limited scope representations out of concern that agreements with clients for such representations would not be enforced. • A limited scope appearance under the rule is unrelated to “special and limited” appearances formerly used to object to the lack of personal jurisdiction. The use of such appearances ended with the adoption of Public Act 91-145, which amended section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301) effective January 1, 2000.

Summary on Withdrawing • After completion, can withdraw by oral motion, if the client is present • If the client objects, an evidentiary hearing must be held on whether the representation is completed by the attorney • The court must allow the withdrawal—no discretion • In the alternative, can withdraw by filing a Notice of Withdrawal • must serve the Notice on the party the attorney represents • Within 21 days, the client can file a written objection • If client does not, the withdrawal is automatic without entry of a court order • If client objects, the attorney must notice up a hearing on the objection • If the grounds was the representation is not completed, an evidentiary hearing must be held • After evidentiary hearing, court must allow withdrawal unless court finds the attorney has not completed the representation specified

Rule 11 amendment re service of papers • (e) Limited Scope Appearance. After an attorney files a Notice of Limited Scope Appearance in accordance with Rule 13(c)(6), service of all documents shall be made on both the attorney and the party represented on the limited scope basis until 1) the court enters an order allowing the attorney to withdraw under Rule 13(c) or 2) the attorney’s representation automatically terminates under Rule 13(c)(7)(ii).

Rule 137—Everyone’s Concern • Rule 137 on the signing of pleadings and sanctions, was amended to add subsection (e): • (e) Attorney Assistance Not Requiring an Appearance or Signature. An attorney may assist a self-represented person in drafting or reviewing a pleading, motion, or other paper without making a general or limited scope appearance. Such assistance does not constitute either a general or limited scope appearance by the attorney. The self-represented person shall sign the pleading, motion, or other paper. An attorney providing drafting or reviewing assistance may rely on the self-represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false.

Comments to amended Rule 137(e) • Notes that under Illinois Rule of Professional Conduct 1.2(c), an attorney may limit the scope of a representation if the limitation is reasonable under the circumstances and the client gives informed consent. • Such a limited scope representation may include providing advice to a party regarding the drafting of a pleading, motion or other paper, or reviewing a pleading, motion or other paper drafted by a party, without filing a general or limited scope appearance. • In such circumstances, an attorney is not required to sign or otherwise note the attorney’s involvement and the certification requirements in Rule 137 are inapplicable. Moreover, even if an attorney is identified in connection with such a limited scope representation, the attorney will not be deemed to have made a general or limited scope appearance. • Consistent with the limited scope of services envisioned under this drafting and reviewing function, attorneys may rely on the representation of facts provided by the self-represented person. This rule applies, for example, to an attorney who advises a caller to a legal aid telephone hotline regarding the completion of a form pleading, motion or other paper or an attorney providing information at a pro bono clinic. • All obligations under Rule 137 with respect to signing pleadings and certifications apply fully in those limited scope representations where an attorney has filed a general or limited scope appearance. Drafting a pleading, motion or other paper, or reviewing a pleading, motion or paper drafted by a party does not establish any independent responsibility not already applicable under current law.

Implications • Attorneys need not fear that by drafting a pleading that they will be dragged into the overall litigation as counsel of record • Diminishes concerns that the client is not giving truthful information, and that the attorney is somehow assisting in the filing of a false pleading, absent his actual knowledge • Attorneys need not identify themselves as having drafted a pleading, to the court or to other counsel in the case • Attorneys should not be subject to sanctions for doing that which the rules allow

Amendment to Rule 4.2 comments on communications • Rule 4.2: • Generally an attorney shall not communicate with a person represented about the subject of the representation that the lawyers knows to be represented, absent consent of the other attorney.

Rule 4.2 comments amended to note limited scope representation: (2) “…This rule also applies to communications with any person who is represented by counsel including counsel in a limited scope representation pursuant to Rule 1.2(c), concerning the matter to which the communication relates.” (8a) “…when a person is being represented on a limited basis under Rule 1.2(c), a lawyer is only deemed to know that the person is represented by another lawyer, and the subject of that representation, upon receipt of (i) a proper Notice of Limited Scope Appearance under Supreme Court Rule 13(c)(6), or (ii) with respect to a matter not involving court proceedings, written notice advising that the client is being represented by specified counsel with respect to an identified subject matter and time frame. A lawyer is permitted to communicate with a person represented under Rule 1.2(c) outside the subject matter or time frame of the limited scope representation.”

Implications • An attorney need not fear contacting a pro se litigant about aspects of the case in which a limited scope attorney is NOT involved. • The limited scope attorney will not be burdened with communications on the other aspects of the case for which he is not providing representation. • Query: is that a positive or a negative thing? Does it help the attorney to know for sure what is going on in other aspects of the case, while he works on his one piece of the case?

Rule 5.5 re Unauthorized Practice of Law • Amendment to the comment 3 to Rule 5.5 on the unauthorized practice of law: (3) “A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se. See Supreme Court Rule 137(e) (lawyer may help draft a pleading, motion or other paper filed by a pro se party). See also Supreme Court Rule 13(c)(6) (lawyer may make a limited scope appearance in a civil proceeding on behalf of a pro se party).

Implication • By specifically referencing the limited scope representation rules amendments in the unauthorized practice rule 5.5 comments, it is made clear that these actions are not considered the unauthorized practice when performed by attorneys.

Tips for Limited Scope • Agreement in writing…you can’t rely on just the limited scope appearance form • Specific acknowledgement of the limited scope by the client by his signature thereto • Be sure that the description on the scope of the representation in the agreement MATCHES the description in the appearance form • Agreement should reference what you are doing, and what you will not be doing • Use of check lists may be helpful • If you can’t describe the discrete task, then maybe you should not do it • Be sure you and your client know exactly what you are getting into • Be careful in using terms like “resolution of” or “completion of” unless you mean that • Don’t do anything “extra” outside the agreement because it will introduce confusion to the scope • Try to withdraw in court with the client present, if possible • Judges may still need “educating” on what the rule allows. Be sure to identify yourself in court to the judge and other counsel as having filed a “limited scope appearance.” • If you have trouble with any judge, consider a motion to reconsider, or involving the chief judge.

What are the ongoing issues? • Written Client Agreements—what should they say and how should they be formatted so there is a “meeting of the minds” as to the scope of the work? • Will clients understand the limitations of the services (what is or is not included?) Documentation will be important! • Attorney’s duty to inform client as to other important aspects of the case, even if not part of the agreed to scope of representation • Are judges really letting attorneys out of cases in conformity with the new rules? • How does the “automatic withdrawal” after the 21 day period of no objection being filed really work, and how is it evidenced in the court file? • Fee disputes—whether attorneys will/should get paid for tasks they did but were not outlined in the agreement/appearance.

Resources and References • See the handouts for helpful resources and references on limited scope representation • Resource pages on the bar websites: • http://www.isba.org/practiceresoucecenter/limitedscope • http://lpmt.chicagobar.org/il-limited-scope/

Hypothetical No. 1 • An attorney agrees to represent a woman in a post-divorce proceeding for $500, and indicates on the limited scope appearance form: • X In the court proceeding: hearing on enforcement of child support, on the following date: August 15, 2013 • X And in any continuance of that proceeding. • The attorney appears on August 15th, and on four further court dates, because the husband and his attorney keep not showing up, or asking for more time to comply with financial records production. Nothing has really happened yet. This is getting ridiculous, and the attorney is losing money on this deal. His relationship with the client is also going downhill because of the situation. Can he withdraw? What should he do?

Hypothetical No. 2 • In a car accident case, an attorney files a limited scope appearance for the defendant Mary Smith, the form stating: • X At the following deposition(s): defendant Mary Smith. • The written representation agreement states the representation is limited to “for the deposition of Mary Smith.” • The deposition takes place, where the attorney interposes numerous objections, and instructions to the client not to answer. The deposition is completed that day. Plaintiff then brings a motion to compel the plaintiff’s testimony, arguing that the objections and instructions not to answer were improper. • Does the attorney have to appear in court and defend the defendant on the motion?

Hypothetical No. 3 • An Illinois legal aid agency has embraced the idea of offering unbundled legal services, in particular the drafting of complaints for otherwise pro se plaintiffs who want to bring small claims. They have a staff of law student clerks to meet with the clients, and draft the complaints. No attorney meets directly with the clients, but the attorney does review the draft complaints before they are sent out to the clients, who pay $20 flat fee for this service, and they have signed an agreement (that the attorney has pre-signed for the clerks’ use), where the client acknowledges that this is a limited scope service, for the sole purpose of drafting a complaint for them. • Is this practice acceptable under Rules?

Hypothetical No. 4 • A legal aid attorney files a limited scope appearance to try to dismiss a credit card debt case against the client, in the amount of $12,000, based on pleading defects in the complaint. The written client agreement and the notice of limited scope appearance clearly state that the representation is for the motion to dismiss only. The motion to dismiss is denied, and the attorney and client are both present in court that day, and the attorney automatically withdraws under the Rules. Two months later, the client calls the attorney, who now has a default judgment in the amount of $12,000 plus costs against her, saying “you never told me I needed to file a pro se appearance and file an answer to the complaint.” What were the attorney’s obligations, if any, on advising the client about these other aspects of the case?

New Illinois Rules on Limited Scope Representation