The Client’s Tasks: Identify what the client can do

Some clients can effectively perform tasks that will reduce the amount of the fee the client will need to pay the lawyer, thereby making the representation affordable. For example, some clients have clerical and administrative skills. They can type pleadings, organize and maintain documents, and provide other support services to lawyers, particularly lawyers in solo practices who have limited support staff.

John H. Price, Jr., a Maryland lawyer who provides limited as well as full services to clients, offers another example of how a lawyer can use the time of a client to substantially reduce the costs of representation.227 He asks his clients to be responsible for the “dead time” in his practice, for example, by filing papers in court, serving papers (when they can under the state rules), and attending conferences and hearings and calling him when their cases are called. (He has an office close to the courthouse in which he primarily practices). He argues that the billed hours that lawyers spend unproductively substantially inflate lawyers’ fees, and preclude many people from retaining counsel.228

In each of the 13 types of limited representation that we described in Chapter 2, there are also tasks that some clients can perform to partially represent themselves. Before the client and lawyer can determine what tasks the lawyer will perform, they must assess whether, and to what extent, the client can perform some of the required tasks. Clients who can pay for full

227

Interview with John H. Price, Jr. 228

representation may wish to perform some of the required tasks. Clients who cannot, may be required to do so.

In either case, the client and lawyer will need to go through the process of identifying and apportioning responsibility for tasks. Appendices 15-17 are very useful forms that M. Sue Talia has developed to guide the lawyer and client through this process. Appendix 15 is a “task” apportionment checklist, and Appendix 16 is an “issue” apportionment checklist. Appendix 17 is a summary sheet, to help the lawyer and client review and monitor the apportionment of tasks and issues.

These appendices not only help the lawyer and client make the apportionment decisions; they also memorialize these decisions, and are therefore important risk-management

mechanisms.

I. Informed Consent: Obtain informed consent from the client for the representation.

The lawyer must obtain the informed consent of the client for the representation and memorialize it in the retainer agreement. Although there is no one-size-fits-all explanation for clients, it might include a general description of limited representation, a specific description of the type of limited representation the lawyer will provide to the client, what the lawyer and client each will do, what the lawyer will not do under the agreement (a little redundancy here helps), whether the lawyer will enter an appearance and when and how the lawyer will withdraw or strike that appearance (making it clear the client will be required to support the withdrawal), whether and how the lawyer and client can modify the initial agreement if they need or want to do so, and identification of the risks of limited representation.229

229

In Formal Opinion 101, the Colorado Bar Association Ethics Committee said that a lawyer providing limited representation to an otherwise pro se litigant ought to explain that the “litigant

Although the ethics rules in most states do not require that a client’s consent to limited representation be in writing, Barrie Althoff, former Chief Disciplinary Counsel of the

Washington State Bar Association, advises lawyers that, “as a matter of good practice and self- protection it should be.230 It could be a part of your written fee agreement, or in a memorandum attached to it, or a letter to your client confirming and describing your mutual decision to limit the scope of your representation.”231 He explains that “[i]f your client disputes the limitation, the written consent would be merely one part of the relevant evidence, which might also include other documentation, your billing statements, or your course of conduct.”232

If there is informed consent for limited representation, and it is reasonable under the circumstances, the lawyer and client should have the right to adopt any variant of limited

representation that they wish. This is a contractual right. It protects the client’s right of access to justice. It also respects the lawyer's discretionary and contextual judgment about the potential usefulness of a particular service to a particular person in a particular case.

may be confronted with matters that he or she will not understand. Colo. Bar Ass’n Ethics

Comm., Formal Op. 101 (1998) (considering unbundled legal services), available at

http://www.cobar.org/static/comms/ethics/fo/fo_101.htm (last visited June 11, 2003) (Appendix 32). That, however, is the trade-off which is inherent in unbundled legal services.” The risks of partial representation, the Committee stated:

include the pro se litigant's inability to introduce facts into evidence due to a lack of understanding of the requirements of the rules of evidence; the pro se litigant's failure to understand and present the elements of the substantive legal claims or defenses; and the pro se litigant's inability to appreciate the ramifications of court rulings entered or stipulations offered during the proceedings.

Id. The Committee acknowledged that, “[s]ince many of these issues will not arise until the court proceeding begins, it will be impossible to advise the client of each and every problem which might later arise.” Id. It found that “the lawyer should counsel the client about those risks and problems which are typical in cases of the type presented by the client.” Id.

230

ALTHOFF, supra note 7.

231 Id. 232

Id. The ABA revised Rule 1.5 of the Model Rule of Professional Conduct to make it “preferable” that the “scope of the representation” to which a lawyer and client agree be in writing. GILLERS AND SIMON, supra note 34, at 53.

J. Written Retainer Agreement: Embody all of the agreements and understandings,