July 1997 

Limiting the Scope of Your Representation:
Questions of Cost, Candor and Disclosure

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

In a recent article, I discussed some ethical and practical considerations involved in providing your client with only a limited legal representation, concluded that "unbundling" of legal services from the traditional full "bundle" of legal services is ethically permissible, and described some reasons you may want, or be required, to limit your representation and some of the risks associated with limited representation. (See, Althoff, "Limiting the Scope of Your Representation: When Your Client Wants, or Can Afford, Only a Part of You," Washington State Bar News, June 1997.) This article explores some related issues.

Under Rule 1.2(a) of the Rules of Professional Conduct ("RPCs"), your client determines the scope and objectives of your representation, but only after the client has consulted you and you have explained any proposed limitations in your representation in a manner that your client can appreciate their significance and has consented to the limitations. Absent such a limiting decision, the "default" scope of representation is, in effect, the "full services" approach. Depending on the nature of the representation, those services would generally include, for example, consultation, legal and factual research, drafting documents or pleadings, negotiation, advocacy, court appearances, and so on. Just as you are obligated to advise your client of appropriate alternatives to litigation, however, you are obligated to discuss with your client the scope of your representation and of alternatives to a "full-service" representation.

Some clients may want you to limit the scope of your representation so they can more directly control the work, or because of a do-it-yourself mentality or of a distrust of lawyers. To a large extent, however, the trend towards unbundling of legal services is a response to the simple fact that many clients simply cannot afford "full-service" legal representation and thus must settle for something less, largely representing themselves. Since they clearly have a right to represent themselves, your assisting them to do so is not assisting the unauthorized practice of law.

Your limited representation of clients — even on a pro bono basis — is, of course, still the practice of law by you. Your representation remains fully subject to the RPCs and other ethical standards. The standard ethical provisions of, for example, competence (RPC 1.1), diligence (RPC 1.3), communication with your client (RPC 1.4), reasonable fees (RPC 1.5), confidentiality (RPC 1.6), and avoidance of conflicts of interest (RPC 1.7-12) all remain applicable. Similarly, by limiting your representation you cannot indirectly do, or assist your client to do, anything that you could not do directly in a full-representation situation. For example, you cannot ghost-write frivolous pleadings for your client to file since RPC 3.1 directly prohibits you from filing frivolous pleadings, nor can you assist your client to make misrepresentations to the court or opposing counsel/clients in violation of RPC 3.4 or RPC 3.5, or destroy evidence in violation of RPC 3.4(a).

When you provide limited representation to a client, but do not disclose that involvement to others, difficult ethical issues arise. In such a case your client appears to a court and to others to be an unrepresented pro se client. If your involvement is not disclosed, are you being fair and candid to the court and to others? Is your unbundling of your legal services by assisting your client through undisclosed services, by which you obviously intend to help your client obtain access to justice at a price your client can afford, in fact conduct that is prejudicial to the administration of justice?

Where one party is represented by counsel and the other is acting pro se, it is generally agreed that the pro se party's pleadings are to be interpreted liberally, and that the pro se party should be given somewhat greater latitude in court (including, for example, perhaps some leniency by the court in the party's making and responding to objections, and perhaps in allowing pleadings to be handwritten or on irregular-sized paper). This is proper since the goal of the proceeding is justice. Where a litigant who appears to be acting pro se is in fact represented by counsel, however, that person is clearly not entitled to such liberality or latitude. Thus, if your name never appears on the pleadings and you never make an "appearance," but you script what your client will say in court or you ghost-write your client's pleadings, the court and the opposing counsel/client would have no reason to know that they were not dealing with a truly pro se litigant unless your client volunteered the information. There is little doubt that your client will make a better presentation to the court, and that the pleadings you draft for your client will be more competent, than if you had not assisted your client, and thus your client will have been well served by you and will have a more complete access to justice. But has the system of justice itself been well served?

You have an obligation of candor to the court under RPC 3.3 and to opposing counsel/clients under RPC 3.4. Under RPC 8.4(c), you may not "engage in conduct involving dishonesty, fraud, deceit or misrepresentation," and under RPC 8.4(d) you may not "engage in conduct that is prejudicial to the administration of justice." Are you obligated under these rules to advise your apparently pro se client to inform the court and opposing counsel/client of your limited role, of your ghost-writing? If your client fails to do so, is that failure a "material fact" which you yourself need to disclose to the court under RPC 3.3(a)(2) so as "to avoid assisting a . . . fraudulent act by the client?" If your client fails to disclose your involvement, must you withdraw from even your limited representation? Is your undisclosed ghost-writing conduct which involves "dishonesty, fraud, deceit or misrepresentation" prohibited under RPC 8.4(c)? Compare, for example, ABA Informal Opinion 1414 (June 6, 1978) and Association of the Bar of the City of New York Opinion 87-3 (March 23, 1987), [which conclude that "active and substantial assistance" to a client by undisclosed ghost-writing is a misrepresentation to the court and opposing counsel and that you would have to withdraw if the client failed to disclose your involvement] with Arizona Opinion 91-03 (January 15, 1991) which raises but does not answer the question of when a counsel must disclose such involvement to the court and others and it appears through a dissent declined to adopt the ABA and City of New York positions.

Is such undisclosed ghost-writing "conduct that is prejudicial to the administration of justice" prohibited under RPC 8.4(d)? Is it a violation of your duty as a lawyer under Rule 11 of the Civil Rules (and Rule 11 of the Federal Rules of Civil Procedure) to sign every pleading? In Johnson v. Fremont County, 868 F. Supp. 1226 (U.S.D.C., Co. 1994), for example, Judge Kane concluded that such undisclosed ghost-writing was a lack of candor and was evasive of FRCP Rule 11's requirement that a lawyer sign pleadings. If your client does not disclose your role in ghost-writing pleadings and you yourself then do disclose your role to the court and others, are you violating your duty not to disclose confidences and secrets of your client? Should it instead be the responsibility of the court and opposing client/counsel to ask the apparently pro se client whether he or she is in any way being assisted by counsel, and if so to what extent? Is such a question an invasion of the attorney-client privilege? Should CR 11 be amended, as Judge Kane proposed as to FRCP 11, to require lawyers who are not making an appearance, but who are ghost-writing pleadings, to co-sign pleadings or otherwise disclose their role?

Even outside the context of litigation, your undisclosed role as an attorney may raise ethical issues. For example, your limited representation might consist of discussing with your client what the client might say to the opposing client in negotiations. Of itself, such limited representation is certainly permissible since your client may communicate with anyone, whether that person is represented by counsel or not. (Cf. California Formal Opinion 1993-131, ABA/BNA Lawyer's Manual on Professional Conduct, 1001:1602; WSBA Formal Opinion 84 (1960), 1997 Resources 387). If you know that the opposing client is represented by counsel, however, it might well be contended that your "scripting" for your client constitutes an indirect communication with a represented third party in violation of RPC 4.2's prohibition of a lawyer communicating with a person represented by counsel. Cf., WSBA Formal Opinion 26 (1953), 1997 Resources 379 (unethical for lawyer to send client to discuss case privately with judge, or to knowingly permit client to do so, without disclosure to opposing counsel).

Because of the many uncertainties regarding your ethical obligations when your client proposed to use your services on an undisclosed basis, you may want to insist to the client that where your role is anything other than merely nominal it be disclosed to the court and to third parties, and that if the client does not do so you are authorized to do so. You may also want to add such a provision to your written agreement with the client.

While limiting your services likely reduces your fees to your client, it also limits your ability to oversee and solve your client's legal problem. Nevertheless, your client may still perceive you as having an ongoing responsibility and, if the client does not attain a desirable resolution of the legal problem, the client may try to hold you responsible in a subsequent malpractice action or bar grievance. In short, you may have traded a reduced fee for an increased likelihood of liability. Thus you may be tempted to try in your representation agreement to limit in advance the scope of your liability for malpractice claims, or to seek in advance a grant of immunity from your client for any aspects of the case in which you do not represent the client. RPC 1.8(h) provides that a lawyer "shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement…." While this prohibition is likely intended to apply to services you intend to perform for the client, as opposed to listed services you specifically agree you will not perform, the strictures of the rule may well still apply, and certainly will apply if you actually perform any of the services you initially said you would not perform. Further, if the rule does apply, since your client is usually seeking limited representation because he or she cannot afford to pay for full representation, it is highly improbable that the client will be able to afford being independently represented in any such agreement to limit liability for malpractice. Thus any attempt on your part to prospectively limit your liability will likely be ineffective. It is also questionable whether many lawyers consulted by such a client as to the advisability of signing such a waiver/immunity agreement would recommend the client sign it. The best you can do is to take great care to document very carefully exactly what you and your client agree you will and will not do for your client, and what the risks of such limitation are to your client.

With many clients unable to pay for legal services, unbundling your services is less an option than a necessity. To do so, you must carefully discuss with your client the limited scope of your representation in a manner that your client can understand the significance of the limits, making sure that the limits do not make it impossible for you to fulfill your ethical obligations. Then make sure you document those discussions and secure your client's written consent to the limitations. You should also explain to your client the applicable ethical standards and insist that, if your representation is to be other than minimal, it be disclosed by the client to the court and third parties.