Caroln Elefant over at MyShingle.com has added some thoughts to yesterday’s discussion between ethicalEsq? and Stuart Levine of Tax and Business Law Commentary concerning the provision of lower-cost, no-frills services to clients. In her posting, titled Cost Benefit Analysis of Client Services, Carolyn notes that large firms could not afford to offer basic level service packages, but that “Economically speaking, solo and small firm lawyers who operate under different financial models could theoretically make money off basic services.” Her concern, however, is with potential malpractice liability: “But until someone can provide assurances that we won’t be sued for malpractice for rendering second tier service at a correspondingly lower cost, we solo and small firm attorneys can’t afford to offer this type of service either.” This being the U.S.of A., no one can ever assure against being sued. But, I believe that good arguments exist to protect a lawyer offering no-frills services that are requested by a client and agreed to by the client after being informed of options and risks. For example, beyond the lawyer’s broad ethical responsibility to make legal services available to the financially challenged, current Rule 1.2(c), as adopted in most states, already explains that “A lawyer may limit the objectives of the representation if the client consents after consultation.” More important, the new Model Rules of Professional Conduct include revisions that were specifically intended, according to the Ethics 2000 Reporter, “to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel.” Thus, a sentence was added to Commentary 5 of new Model Rule 1.1 on Competence, explaining that “An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).” More directly, Model Rule 1.2(a) and (c) were revised to clarify the ability of lawyer and client to limit the scope of representation, if the limitation is “reasonable under the circumstances and the client gives informed consent”: RULE 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer The Commentary to new Model Rule 1.2 is also illuminating and helpful: Commentary Agreements Limiting Scope of Representation [6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. [7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a 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 lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1. [emphasis added] My disagreement with the Ethics 2000 treatment of fees is no secret. However, I support this attempt to make legal services more accessible and affordable, by clarifying that lawyers and clients may reasonably limit the scope of representation, so long as the client makes an informed decision. Attorneys wishing to serve clients of low or moderate means should find considerable protection and encouragement in the new version of Model Rule 1.2, and should make sure it is quickly adopted in their State — and perhaps further strengthened with more explicit language in the Rule or its Commentary. Informational campaigns might also be used to let the public know that lawyers offer choices, with levels of service from “Cadillac” to “Kia” to “Karmann Ghia.”
July 6, 2003
New Model Rules Support Offering No-Frills Services
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.
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