On July 1, 2013, Illinois became one of 20 states to offer limited scope representation in the context of litigation. Limited scope representation is an agreement between lawyer and client to perform a certain part or limited portion of a client’s legal case. These important changes to the law regarding limited scope representation will allow greater access to justice for the poor and the middle class. Limited scope representation will decrease the current strain on the judicial system and increase quality legal assistance in both pro bono and traditional fee for legal services arrangements.
History. Since the 1990s, the Illinois Rules of Professional Conduct have allowed some form of limited scope representation. Lawyers representing clients in transactional matters have utilized limited scope representation for years. However, limited scope representation in litigation matters was difficult, if not impractical. Once an appearance was filed, it was the Judge and not the lawyer who had the discretion on whether to allow a withdrawal from the case. Understandably, lawyers were reluctant to undertake the representation of a client with limited resources if it meant that they were in the case for an indeterminate amount of time.
Changes. A shift in the legal landscape over the last ten years - especially the increase in pro se litigants - prompted lawyers, judges and legal aid organizations to rethink how best to serve the public. Legal aid funding has been on the decline since the turn of the century, resulting in fewer public interest attorneys and more economically disadvantaged clients turned away without legal assistance. There was also an increase in the sheer number of pro se litigants from the working and middle class; earning too much money to qualify for legal aid, but not enough to afford a lawyer for their lawsuit. Whether the inability to afford a lawyer was perceived or real, the effects were the same: an increase in pro se representation.
This increase in pro se litigants placed a burgeoning strain on the judicial system. Judges, staff and circuit court clerks were pressed for legal advice that they could not offer. Litigants were faced with a set of rules – both procedural and substantive - often difficult to understand. Frustration on both sides of the bench was becoming more pronounced and prevalent, especially in courts handling family law, foreclosures and evictions. Self-help forms and pleadings increasingly available on the Internet only served to exacerbate the problems. “Substantive rights may be lost by uninformed self-represented litigants. A self represented litigant who experiences the complexities and perceived impediments [of the court system] may be left with a sense of dissatisfaction with the justice system.... It not only raises questions of access to justice, but also raises questions of securing fair and reasonable justice.”1 Initiated by the efforts of the Illinois Lawyers Trust Fund, a Joint Task Force was formed in 2010 to study the provision of limited scope legal representation and propose solutions to the pro se issues within the Illinois court system. The Joint Task Force was comprised of members of the Chicago Bar Association, the Illinois Judges Association and the Illinois State Bar Association. The members of the Joint Task Force drafted and discussed proposed changes to existing Illinois law regarding limited scope representation with lawyers, judges and the general public. The feedback from the public revealed that a full 50% of those surveyed in the $30k to $50k income bracket favored some form of limited scope representation.2 Perhaps most indicative of the future of the practice is that a full 80% of the youngest demographic surveyed, regardless of income, were interested in limited scope representation.3 On May 19, 2011, the Joint Task Force issued its proposed changes to the Supreme Court rules and the Rules of Professional Conduct to allow for limited scope representation in litigation.
The Illinois Supreme court adopted the proposed rules regarding limited scope representation in an order (M.R. 3140) dated June 14, 2103 and effective July 1, 2013. The following rules were amended: Supreme Court Rule 11 (clarifying service of court documents under a limited scope representation); Supreme Court Rule 13 (key amendments setting forth the logistics/procedures of limited scope representation and providing the forms for a limited scope appearance and withdrawal); and Supreme Court Rule 137 (permitting ghost-writing of pleadings for pro se litigants without the necessity of filing a general or limited scope appearance and allowing attorneys to rely on the pro se litigant’s representation on the facts in the lawsuit without further investigation by the attorney, unless the attorney knows that such representation is false). The Comments to the following Rules of Professional Conduct were also amended:
Rule 1.2 (scope of representation); Rule 4.2 (communication with represented party) and Rule 5.5 (allowing assistance to pro se litigants). The impact of these amendments cannot be over-stated. As of July 1, 2013, lawyers are now able to assist pro se litigants without the need to appear in the case. Basic legal tasks such as filing out court forms and more complex legal work such as drafting/responding to pleadings and formulating/answering discovery can be accomplished without setting foot in court. Attorneys can chose to appear in a pending case by filing a Limited Scope Appearance. The pro se litigant can then hire the attorney to perform only a portion of the lawsuit such as taking depositions, appearing for court hearings, arguing motions, attempting settlement negotiations or appearing at the end of the lawsuit and trying the case. Once the lawyer’s limited legal work is completed, the lawyer can withdraw their appearance (either by oral motion or by written notice) and the court must grant the motion to withdraw unless the party objects on the grounds that the lawyer has not completed the task(s) set forth within the written limited scope of representation.4
Fundamental to limited scope representation is the necessity for a clearly written agreement between lawyer and client setting forth the limited nature of the legal work. It is important to have the conversation with your client as to your duties in the case as well as theirs and then confirm the same in writing. Documenting in the agreement that you are relying on your client’s representations of the facts will assist in reducing your risk. If appearing in court, the attorney must also file a Notice of Limited Scope Representation as set forth in Rule 13. Filing of this form is mandatory and a lawyer’s failure to file the form may compromise his/her ability to automatically withdraw from the case.
Extra work. If the client wants you to undertake additional tasks not originally set forth in your Limited Scope Appearance, Rule 13 provides that you can file as many Limited Scope Appearances as needed. This was an important consideration from a risk management perspective as well.
One of the main concerns articulated by risk managers was the possibility that attorneys would subject themselves to ARDC or malpractice complaints by agreeing in writing to one limited legal task and then (usually at the request of the client) undertaking additional legal tasks.
Indeed, the amended comment to Rule 1.2 allowing for limited scope representation adds the important caveat that “the limitation must be reasonable under the circumstances”.5 By staying within your area of primary practice, you can competently represent the client on a limited basis and explain to your client the potential minefields that can (and often do) occur in litigation.
The rule changes hold the promise of a brighter future in the provision of legal services. Legal Aid organizations should start seeing tangible benefits from the changes in the law. The hope is that these amendments will yield an increased pool of talented attorneys willing to assist with economically disadvantaged pro se clients. The working and middle class pro se litigants will also benefit as they now have the ability to hire experienced attorneys for a limited portion of their lawsuit - resulting in fewer pro se mistakes and decreased frustration. The new rules of Limited Scope Representation should result in more meaningful access to the justice system for all pro se litigants.
1 Joint Task Force Final report at 13-14, May, 2011 citing ABA Standing Committee on the Delivery of Legal, November 2009 Report at p. 5.
2 Joint Task Force Final Report at p. 15.
4 See SCR 137 at para. 7 and Objection to Withdrawal form attached to SCR 13.
5 Rule of Professional Conduct 1.2, Comment at para. 7.
David W. Clark is the owner of the Law Offices of David W. Clark PC in Wheaton, Illinois, where he concentrates his practice in personal injury, workers compensation and general civil and business litigation. He received his BA from Indiana University and his law degree from Loyola University Chicago School of Law. He serves as a volunteer for Administer Justice’s Legal Aid Clinic and is the current Committee Chair for the DCBA’s Legal Aid Committee.