For many years now, limited scope representation—often called “unbundling”, has been a hot topic in the legal field. Our do-it-yourself culture, heavily fueled by the vast array of resources available on the Internet, has caused the number of people who take legal matters into their own hands to explode. While the professional responsibility laws governing Wisconsin lawyers have allowed limited scope representation for quite some time, these rules were short on specifics. Many Wisconsin lawyers—including yours truly—have been reluctant to provide limited scope representation, because these ethical rules had the potential to trap both the lawyer and the client in a more complicated and more expensive relationship than either one wanted.
Help Where It’s Needed
For example, in Family Law cases, there are very specific laws about where a case involving children can be filed. A case filed in the wrong court must be dismissed, and a new action started in the proper court. Every state in the nation has adopted the same uniform laws covering this.
Under the old rules, a potential client might have a difficult time finding a lawyer to represent him or her just on the jurisdictional issue, because the old rules said that a lawyer appearing in a family law case, for any reason, had to stay on throughout the entire case until excused by the judge. Custody and placement cases can be very difficult and messy, and so a judge has a strong incentive to keep an attorney on a case so things stay focused and on track, even though the client may have made the decision not to incur that expense.
And on the flip side, lawyers have been concerned that if they only accept responsibility for part of a case, a client may later complain that the lawyer failed to cover something he or she should have, leaving the client in the lurch.
That combination made it very difficult for a client to hire a lawyer just to address a limited technical issue like jurisdiction. The rules limited access to legal representation, often forcing a litigant to choose between full representations that he or she might not be able to afford, or to go it alone on a complex issue.
New Wisconsin limited scope rules, effective January 1, 2015, change that. The new rules expressly allow an attorney to appear on behalf of a client for a specific hearing or on a specific issue, provided everyone is given notice of that fact right away. When the attorney has completed the scope of the work he or she has been hired to do, the attorney simply files a notice with the Court stating that fact, and the self-represented party is on their own from that point forward.
Getting It in Writing
The new rules provide for greater access to legal services outside of court, too. They allow attorneys to provide a broad spectrum of services, from coaching and counseling to document preparation up to representation in court, and let the client decide the scope of advice and representation. The new rules call for a written description of the limits on the scope of representation, but it doesn’t have to be anything fancy; many attorneys use a simple checklist, signed by the attorney and client, to take care of this requirement.
The self-represented client assumes the responsibility and risks associated with all of the matters assigned to him or her under the written disclosure. For example, if I’m asked to prepare a marital settlement agreement in a divorce case based solely on the notes and information given to me by my client, the contract with the client will make it clear that my only responsibility is to prepare that document. If there are additional things that need to be done to make the agreement effective—for example, documents to transfer ownership of a retirement account, something that is not necessarily obvious to the self-represented client—I will point that out to the client but the preparation of that document falls outside of the scope of my limited representation. The client has the responsibility to see that that gets done, and is free to hire me to do that with another limited scope agreement; hire someone else to do it; or take on that work as a do-it-yourself project.
Consumer Driven
Without clear and effective communications between the attorney and the client, limited scope representation can be risky. There is always the possibility of something important falling through the cracks. Attorneys shied away from limited scope representation under the old rules because they believed – with good reason – that responsibility for all aspects of the case rested on their shoulders, and the rules did not provide an effective way to put limits on that responsibility. The new rules place more responsibility on the consumer of legal services to define the lawyer’s role.
I believe the new limited scope rules are good for the general public, and good for the legal system. People in need of legal assistance and guidance can focus their resources on issues in areas that will provide them the greatest benefit, and courts and judges are going to see fewer cases where unrepresented parties struggle with complex legal problems.
Dan Bestul is a fellow of the American Academy of Matrimonial Lawyers and has been certified as a Family Law Advocate by the National Board of Trial Advocacy. In addition to his work with clients in traditional and collaborative family law representation, Dan serves as a mediator and lawyer-coach in family law matters. Dan practices primarily in Green and Lafayette Counties in Wisconsin, and can be reached by e-mail at bestul@swwilaw.com.