In November of 2015, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 472, Communication with Person Receiving Limited-Scope Legal Services.
In this opinion, the Committee discussed various communication issues as they relate both to a lawyer who provides limited scope representation to a client under Model Rules 1.2(c) Scope of Representation and Allocation of Authority Between Client and Lawyer and 4.2 Communication with Person Represented by Counsel when lawyers who communicate with such persons on behalf of their clients.
(Note: for further information on limited scope representation otherwise known as “unbundling”, theABA Standing Committee on the Delivery of Legal Services has produced several resources in this area that include a White Paper on Unbundling, an Unbundling Fact Sheet and The Handbook on Limited Scope Legal Assistance.)
Model Rule 1.2: Scope of Representation
Model Rule 1.2(c) states as follows:
At the outset of the Opinion, the Committee reviewed the legislative history of Model Rule 1.2, noting that the Ethics 2000 Commission (E2K) had proposed new language in Rule 1.2 that would have required a lawyer to clearly delineate in writing the scope of the services that the lawyer was to provide to the client, so that the client would understand which part of the representation was the lawyer’s responsibility and which part would fall to the client. However, since the ABA House of Delegates did not approve the E2K recommended amendment to Rule 1.5 Fees that all fee agreements be in writing, this provision was not adopted.
Nevertheless, drawing upon state bar activity in this area, the Committee noted that several states’ rules of professional conduct require that the terms of limited scope representations be in writing, and that some state bar ethics committees also recommend that limited scope fee agreements be in writing. The Committee also referred to Rule 1.5(b) that states as follows:
The committee therefore strongly recommended that such limited scope agreements be made in writing, even though the model Rules do not explicitly require it.
Model Rule 4.2: Communications with Persons Represented in a Limited Scope matter
The Committee next considered the circumstances under which Model Rule 4.2 operates to prohibit communications with an opposing party who is represented on a limited scope basis without the limited scope lawyer’s consent.
Model Rule 4.2 states as follows:
Duty to Inquire if the person is represented?
Referring to ABA Formal Opinion 95-396 (1995), the Committee stated that a lawyer does not always have a duty to ask if an opposing party is represented.
However, recognizing that it can be difficult to determine whether a person is represented on a limited scope basis on a particular matter, the Committee referred to that part of the definition of “Knowingly,” “known,” or “knows” in Rule 1.0(f) Terminology that a person’s knowledge “denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances” (emphasis added), and paragraph 8 of the Comment to Rule 4.2’s admonition that where the existence of lawyer client relationship can be inferred from the circumstances, “a lawyer may not close his eyes to the obvious.”
For example, when representing a client against a person who appears pro se but where it is apparent that the person’s pleadings have been prepared by a lawyer, or where an opposing party in a commercial transaction produces documents that appears to have been prepared by a lawyer, the lawyer may infer that the person has engaged the services of a lawyer in the matter, and may have a duty to inquire as to whether the person is in fact represented.
The Committee also noted that it may sometimes be difficult for the limited scope client to articulate the scope of the representation, or whether the representation has concluded. Under such circumstances, the lawyer should contact the lawyer who has provided the limited scope services so as to clarify the issues about which the lawyer may not communicate directly with the limited scope client.
The Committee also warned of the potential adverse consequences of failing to comply with Rule 4.2 that include “potential disciplinary complaints, motions to disqualify, motions to exclude testimony, and monetary sanctions, all of which could impede a client’s matter.”
Noting that the protections of Rule 1.6 Confidentiality of Information continue even after the limited scope representation has concluded, the Committee also cautioned that the lawyer should be careful to avoid asking questions about communications between the lawyer and the limited scope client about matters that are protected under Rule 1.6.
Matters outside the scope of the representation
The lawyer is free to communicate with the person regarding matters that are outside of the limited scope representation, and should proceed in accordance with Rule 4.3 Dealing With Unrepresented Person. Also, regarding matters where the limited scope representation has concluded and where the limited scope lawyer is not expected to “reemerge to represent the client” in the matter, the lawyer may communicate directly with the limited scope client.
– Peter Geraghty, ETHICSearch Director