April 4, 2014 – The Wisconsin Supreme Court today unanimously adopted a petition that expands limited scope representation rules in Wisconsin. Currently, lawyers can provide limited scope services to clients.
But now, lawyers will have more guidance on providing limited scope representations through rules and procedures drafted by the court’s Planning and Policy Advisory Committee (PPAC), which submitted Petition 13-10 last year.
The new rules apply to representations commenced after Jan. 1, 2015. Lawyers providing limited scope representations until the effective date are not subject to the new procedures, rules and amendments, although clients must still give informed consent.
Limited scope representation allows attorneys to work on limited aspects of case. For instance, a lawyer might agree to draft a document for a client but not to negotiate the terms. A lawyer may agree to drafts briefs in litigation, but not to appear in court. Or, a lawyer may agree to appear in court, but only for one particular proceeding.
The purpose is to give people greater access to discrete legal services at costs much lower than a full representation might entail. With the increasing number of pro se litigants, allowing limited scope representation has been a priority in many states.
Bayfield County Circuit Court Judge John Anderson, co-chair of a PPAC subcommittee, says 42 states now allow limited scope representation, including Wisconsin, and 24 states have expanded limited scope rules to give attorneys and judges more guidance.
In 2007, Wisconsin adopted new ethics rules that allow a lawyer to “limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” But as Anderson notes, attorneys have been hesitant.
“We believe that one of the obstacles to limited scope representation in Wisconsin is [the hesitancy] among the bar to enter into those agreements because there is no safe harbor for them,” Anderson told the seven-member court in a public hearing last month.
The adopted rule amendments, Anderson says, help provide the safeguards and guidance necessary to encourage more limited scope representations in Wisconsin.
The new rules requires that most limited scope representations be clearly defined in a client-signed agreement. However, telephone consultations and court-appointed representations do not require the written informed consent from the client, among other types of representations.
In addition, limited representations to existing clients pursuant to an existing attorney-client relationship do not require informed consent. The State Bar’s Business Law Section encouraged this exception to erase burdens on limited scope representations in the business context, where many client contacts are generally limited in nature.
Other provisions guide attorneys on questions of fees and expenses, and other ethical situations that could arise, such as communications with limited scope clients.
In addition, the petition creates rules related to the “ghostwriting” of pleadings, briefs, or other documents. For instance, the filed documents must indicate that it was prepared with the assistance of a lawyer, but the lawyer need not disclose his or her identity.
In court proceedings, the rule requires attorneys who have limited the scope of their representation to certain proceedings or issues to file a “notice of limited appearance.”
At the conclusion of the limited representation, the attorney must file a “termination of limited appearance,” which signals to the court the lawyer’s representation has ended.
At the public hearing, several justices questioned whether circuit court judges could use their inherent authority to keep lawyers on cases despite the limited scope termination notice, just as judges can deny a lawyer’s motion for withdrawal in some cases.
“Does the proposed rule limit the authority of the court to, in isolated circumstances, require continued representation to finish the proceedings?” Justice Ann Walsh Bradley asked. Judge Anderson said it could potentially happen in extraordinary circumstances.
But Judge Anderson says the rule envisions that judges will not intervene when lawyers and clients have written agreements to limit the scope of representation, and PPAC has recommended educational seminars to help lawyers and judges understand the rule.
“If we want to encourage attorneys to provide a valuable resource to the segment of the population that needs it … judges need to honor these written agreements,” he said.
