Michigan’s Rule Changes for Limited Scope Representation

Episode Notes

Transcript

State Bar of Michigan On Balance Podcast

Michigan’s Rule Changes for Limited Scope Representation

01/31/2019

[Music]

Intro Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

Take it away, ladies.

[Music]

Tish Vincent: Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I am Tish Vincent.

JoAnn Hathaway: And I am JoAnn Hathaway.

Tish Vincent: We are very pleased to have the Honorable Michelle Rick and Attorney Kim Jones as our guests on today’s podcast to talk about Limited Scope Representation.

Darin Day is joining us as guest host.

Darin Day: Hi, this is Darin Day, Director of Outreach of the State Bar of Michigan. We are here today to talk about Limited Scope Representation.

First, I would like to introduce Michelle Rick and Kim Jones. Could you please introduce yourselves to our listeners?

Judge Michelle Rick: Hi Darin and listeners, I’m Michelle Rick. I am a Circuit Judge for the 29th Circuit Court, which is reflective of the Counties of Clinton and Gratiot, middle of the Mitten, south of Mount Pleasant and north of East Lansing.

Kimberly Jones: Hi, I’m Kim Jones, and I’m a fairly new attorney, working in Washtenaw and Ingham counties. I have a law firm that is non-profit and offers legal services on a sliding scale fee, and I was a member of the Limited Scope Representation Education subgroup over the last year helping develop some of these policies.

Darin Day: Thanks so much. That’s a good point. Kim, we have an affordable legal services committee here at the State Bar and within that is a subcommittee on Limited Scope Representation. Before that subcommittee was formed, we had a work group on limited scope and both Judge Rick and Kim were very active members of that work group over the years putting together the programs and the rules that we’re going to talk about today.

So the big news is that last year in January, that’s 2018, the Michigan Supreme Court promulgated revisions to both the Michigan Court rules and the Rules of Professional Conduct that both prescribed and post-scribed activities from attorneys that helped them to better serve self-represented parties, and this is all under the rubric of Limited Scope Representation.

The nub of it is they have created two new tools for the lawyers’ toolbox. One is the ability to within the rules ghostwrite pleadings and other documents file with courts. The other tool is the ability to treat a representation of a client for a private civil matter, something like a contract issue, where the client and the attorney can themselves decide ahead of time what the attorney is going to do in terms of providing representation and then the attorney has the ability to file a limited appearance on a matter that specifies exactly what the attorney will do and get into and out of that representation, simply by filing papers with the court and providing notice to the other parties and attorneys of record, which is very different than the rules used to operate.

This gives the ability of the attorney and the client sort of decide what the scope of the representation is and we’ll get into all of that.

But first, let’s start with some background. I’d like to talk a little bit about why the State of Michigan decided that revising the rules to accommodate limited scope representation was a good idea, and that the court took this action last year in 2018.

We’ll start with you Judge Rick.

Judge Michelle Rick: Well for one thing, the courts have become overburdened with self-represented litigants and this is true across the board. I see it particularly in the area of family law, and it is not uncommon for self-represented litigants to attempt either prejudgment or post-judgment activities on their own or to have an unbalanced where perhaps one side is represented and the other side is not.

And the practical effect of that is because these self-represented litigants don’t have the knowledge of the court process, they routinely rely on court staff who of course are not in a position to provide them with legal counsel of any sort or legal advice, but they interface not only with their judge, I guess I’m saying, but also with clerk’s offices, with friends of the court, with judicial staff. And we very easily recognized that this was a tremendous burden and there had to be a better way to ensure that those who want to represent themselves for the entire action or for a part of it, that there had to be a mechanism for them to have their needs met.

(00:05:00)

And there is a great unmet legal need for legal services. In 2017, the Justice Gap Report that was authored by Legal Services Corporation reflected or talked about the unmet civil legal needs of low-income Americans, and in that report, LSC talks about 86% of the civil legal needs reported by low-income Americans in the past year had received inadequate or no legal help whatsoever.

To give that some perspective for the State of Michigan, in 2016, there were approximately 1.45 million Michiganders who found themselves at the poverty level or below, and to give that some further perspective Darin, if we look at the Federal poverty levels carving out Hawaii and the State of Alaska for a family of four, a 100% of the Federal poverty level is $25,100.

And we know that for folks who fall in that Federal Poverty Level of just 100%, that there are approximately 71% of them who have experienced a legal problem and 1.7, who have received no legal help, because of those legal problems.

Darin Day: Thank you Judge Rick. So the courts have been overburdened with self-represented parties’, not just judges but staff and other resources of the courts, and it sounds like there is a tremendous need for legal services to people who are not getting what they could use to help them in civil litigation, in private civil litigation.

And I don’t think that’s it. I think there are other issues that were identified as a reason why we needed these rules to be revised. Kim, you want to talk a little bit about some of the other issues?

Kimberly Jones: Well, I mean it is primarily I would say an access to justice gap. If you are in a court case and you have no knowledge of the law, you’re at a disadvantage, particularly if the person that’s on the other side has legal counsel.

So there’s also an issue of attorneys that could provide this critical information to these litigants. So there are underemployed attorneys in the state and new attorneys like myself and in fact, when I joined the bar, I was super excited because this rule came out fairly soon after and I — that was the reason that I went to law school.

I’m primarily an academic, so I’ve studied the law for quite a while, and I decided to go back to school, because I have students that have all these legal troubles that I couldn’t help, and I thought boy, if I was an attorney, I could really help them. But then I thought, I can’t really help them like I’d want to because they can’t afford it.

So the question is what and my — the people that I’ve worked with are super savvy. I mean if I explained to them the process, if I tell them what they need to do, they could do it.

So this is really going to tremendously help a large group of people who one, don’t have access and two, have knowledge and can’t provide it or at least were unable to provide it in a way that the courts would allow. So this is an emergent market for attorneys and this is just a win-win situation. I mean lawyers will benefit, clients will benefit, the courts will benefit. I mean there’s no downside here.

Darin Day: That’s terrific. And if I could tie in what both of you were talking about the way I’ve heard it described is that there’s this huge segment of the population in the middle between those who have a low enough income to be eligible for legal aid, who have access to full time, full representation through that system, and then those who have the means to afford full representation from an attorney at market rates. Those are two groups at either end of the spectrum and in the middle is the mass majority of Michigan citizens.

Kimberly Jones: Absolutely. The figures that the Judge was speaking of earlier talks about, can you imagine, I was just flabbergasted by that number. I was thinking about four people trying to live on $25,000 a year and what does that look like. And what’s so devastating about something like that is these are the people that will be destroyed the most by some adverse civil action, right. They buy a lemon car and they can’t get any help, and so they can’t get to work to make the $25,000, that doesn’t cover their bills anyway. Who can help them?

We’re talking about people who in other words have no recourse, because they can’t get legal aid, they can’t, they don’t, so where would they come up with that extra money when you have four people living on $25,000, there isn’t any extra money.

So this allows the person to take charge of their case, but also I think it empowers them in another sense, because this process requires the attorney to really talk more with their client and work together to resolve a case, and I think that’s helpful in so many ways.

(00:10:03)

Because sometimes when there’s full representation, the attorneys just do it being an attorney, doing whatever they think is best and there’s less conversation with the client and this is another way to encourage that creation of a unified front and coming out with the best outcomes for the client.

Darin Day: And it’s my understanding that Michigan is not a pioneer in this effort that over 30 states had Limited Scope Representation Rules before Michigan did and really what the experience in those states is telling us is that the real comparison here is not between limited scope representation and a full representation scenario, but really the comparison is between clients representing themselves and having no legal services and limited scope representation. And with that I think maybe it’s time to dive right into the rules. I think we’ll start with Judge Rick.

Judge Michelle Rick: Well thank you. So there are several rule changes that were implemented in January of 2018, MCR 2.107, 2.117 and 6.001 and those are effectively the guideposts that practitioners will be using in order to operate either — well, in this instance, let’s focus first on not the ghostwriting but rather the limited scope representation.

In MCR 2.117 (B)(2)(d) permits attorneys to restrict their activities in accordance with the notice of limited appearance and that essentially embodies the notion that an attorney can be contracted for a specific purpose within the confines of whatever that pending matter happens to be.

I’d like to maybe think of it in terms of like a — maybe a divorce action as family law is certainly one of the areas where limited scope applies and perhaps you have a litigant who has been served interrogatories and they would just like some assistance preparing those interrogatories or perhaps attending a deposition, this provision permits an attorney to act for that limited purpose.

And it’s important to note, it’s the best practice that to avoid ambiguity with respect to any restrictive activities that we are encouraging lawyers to enter into written agreements with their client that entirely defines the scope of their representation whether it be duration and time, the type of activity that they will be performing on behalf of the client or any other nuance that is clear and unambiguous because there are provisions that will later perhaps apply if there is a question about whether that attorney in fact has either failed to perform under that agreement or perhaps has exceeded the performance in that agreement.

And I can say as a Trial Court Judge that I would not necessarily be personally concerned with that agreement unless there’s a question raised afterward and there of course is a mechanism there for the court to set a hearing for the court to determine that actual scope of representation under the rule that I’ve specified.

MCR 2.117 (c)(3) sets forth the mechanism for withdrawing from limited scope and if you are an attorney and you have done that deposition with your client, and that’s completed, then you would be in a position to provide your client with the notice to withdraw, have them sign that and upon the client signing it it’s entered with the court and that withdrawal is immediate.

If for some reason a client is either unavailable or uncomfortable signing a withdrawal then an attorney can sign that withdrawal and file it without the client and that withdrawal has given effect after 14 days unless the client were to file an objection on the grounds that the attorney failed to comply with the parameters of the agreement.

Darin Day: This is a great time to mention for the first time probably not that last time, the Limited Scope Representation Toolbox that you can find in the State Bar’s website.

(00:14:49)

So michbar.org is where you go and under for members you’ll see a link to the Limited Scope Toolbox and there you’ll find among many other resources, samples of engagement letters, Notices of Appearance, the Notice of Withdrawal, the form that a client might use to object to withdrawal and guidance on how to frame the representation so that it is exactly as the Judge described, a clear statement of what the attorney will do so the attorney can meet all of the requirements of the agreement and not exceed the limitation of the representation as decided by the client and the attorney.

And that is a good segue into the concept of the successful initial consultation. Kim, we will turn to you and talk about what kinds of things should an attorney and the client discuss in order to set up a Limited Scope Representation that will be successful for all people involved?

Kimberly Jones: Yes it’s really, really important at the initial meeting to gather the parameters of the case, but also talk closely with the client to understand what their skill set is. In order to be successful in self-representation, a person has to be task-oriented, they have to be able to read and write fairly well, understand rules, be able to follow them, be responsible, reliable, all these types of things. And if upon discussing the case with the client you recognize they might not be a good candidate, then it’s probably a good idea to encourage them to seek full representation so that they can obtain a proper resolution to their case.

A lawyer does this every time a client comes in when they talk to you about the issue that they have, they’re going to explain to you what’s going on, they think they have a case and you know the law so you can tell them, hey, yes, this is an issue and it looks like you have this kind of issue and here are the rules parameters.

So if I’ve had a client that came in that was served with divorce papers, right, so I’m going to talk about the family law process, what happens and what it entails. And then all the different components, some friend of the court involvement that type of stuff, so they can understand.

But then also talking with them to find out their level of education, their level — have they ever had any court experience before. If they’ve been divorced before, then they might have more familiarity and they’re even better candidate because they’ve gone through that process.

If in the unlikely experience that they’ve had some other interaction with the course, they may be somewhat familiar with dockets, how they work, things like that. So that makes them a good candidate.

Another thing is to make them aware of deadlines, timelines, things like that, that if, that they must file things at certain points. So even if they are going to represent themselves, the rules don’t change for them, they still have to follow the same rules that an attorney would follow and then looking at whether representing themselves is a good idea. So we’ll talk about all the things that need to occur and what parts they might feel comfortable doing, what parts the attorney will feel comfortable doing and dividing up that work.

Another thing that needs to happen is to determine their ability to pay. So what is their financial picture, what does it look like, how many hours of work can they afford and what makes sense for them to do themselves.

We talked about ghostwriting previously, perhaps maybe the main issue is to file an answer to this complaint, they’ve come in, they’ve been served with divorce papers and they need to file an answer or some type of response and they don’t know how to do that. An attorney drafting that particularly one that’s familiar in family law has a — probably has an answer that might meet a lot of their needs and not take very long to draft and to go over with them and then they could take on the process from there.

If attorney meets with someone and determines that, that sounds good, then they can talk about how many hours of work the attorney would do versus the tasks that the client would do. Draft a budget together, so the client would be aware of how much this service is going to cost them at the onset, which is much different than — it’s similar to a flat fee service if you go to an attorney and this is how much they charge for a divorce, this is how much they charge, and it doesn’t matter if they work 10 hours or 80 hours, this is how much you’re going to pay. But some attorneys charge hourly, so it can make clients nervous because we don’t know, is this going to cost me $1,500 or $3,000, we don’t know, but if we know at the onset who’s doing what, we can have a better idea of what that budget is going to look like.

And then create a list and a timeline, you’re going to do this and attorneys going to do that and these are the deadlines for what that needs to occur and all of that should really be documented in a written engagement letter. Here’s my limited scope representation and it clearly identifies, something akin to an activities’ list, the activity that needs to happen, the name of the person, and the deadline for that, slap that right into that limited engagement letter and you’re good to go.

Darin Day: That’s right, and another benefit of having a well-written engagement letter is that in the event that the attorney wants to make an appearance in litigation they can use that same language to draft the notice of appearance.

(00:20:01)

Kimberly Jones: Sure.

Darin Day: That defines for the court and for the other parties involved exactly what they’re going to do and it helps get out of the matter later when you’ve fulfilled that rather than being brought in to which reminds me something else we should have mentioned.

One of the powerful tools that the court has given us in terms of ghostwriting is that it’s permissible to draft whole or part of a document file and not enter an appearance as an attorney.

Kimberly Jones: Right.

Darin Day: In fact, you don’t even need to disclose your name, simply that you’re a licensed attorney in Michigan and you helped with the paper and it keeps you from making an appearance in the matter if you’d — if you don’t choose to. So that’s another balancing act with finances and time and what the attorney’s involvement is going to be. Thanks so much.

I want to turn back to the Judge to talk a little bit more about the conditions under which limited scope makes sense and the rules do a decent job of spelling this out and maybe the judge could help us understand some of those concepts.

Judge Michelle Rick: Sure, I alluded previously to the fact that this applies beautifully in the area family law, but I also want to stress that limited scope representation is anticipated to apply in landlord tenant disputes, expungements, and non-complex consumer or tax issues as well as those simple divorces and other family law matters, and that the State Bar is exploring amendments that might allow for LSR to apply in probate administrative law and labor and employment related issues.

But in terms of the question that you posed, in addition to there being court rules that are applicable there have been rule changes to the Michigan Rules of Professional Conduct and in particular, MRPC 1.2 (B) defines scope of representation which permits a lawyer who is licensed to practice in this state to limit the scope of representation, file a limited appearance in a civil action and act as counsel of record for the limited purpose identified in the appearance assuming or if the limitation is both reasonable under the circumstances and the client gives informed consent preferably in writing and we’ve talked about why that written material is so important.

MRPC 1.0 defines informed consent as an agreement to a proposed course of conduct after the lawyer has communicated adequate information and has explained the material risks of the course of conduct and that there are reasonably available alternatives to the proposed course of conduct. So that kind of gives some of the definition or meat on the bones in terms of what we’re talking about here.

Darin Day: That’s terrific. Well it looks like we’ve come to the end of our show, but we’d very much like to thank our guests, Judge Rick, Kimberly Jones, I appreciate your time and your expertise, and I want to reiterate that at michbar.org we have the toolkit for Limited Scope Representation and there among other things you can join the SBM Connect Discussion Group on limited scope where practitioners interested in this area of law and who are currently doing limited scope representation are discussing important matters with each other through discussion groups posting examples of materials and asking and answering questions and it’s a really useful place to be.

So SBM Connect and michbar.org for the Limited Scope Toolbox.

Tish Vincent: Okay well thanks to our special guest host, Darin Day, and to the Honorable Michelle Rick and Attorney Kimberly Jones for joining us.

JoAnn Hathaway: This has been another edition of the State Bar of Michigan: On Balance Podcast. I’m JoAnn Hathaway.

Tish Vincent: And I’m Tish Vincent. Until next time, thank you for listening.

[Music]

Outro: Thank you for listening to the State Bar of Michigan: On Balance Podcast, brought to you by the State Bar of Michigan and produced by the broadcast professionals at Legal Talk Network.

If you would like more information about today’s show, please visit legaltalknetwork.com, subscribe via Apple Podcasts and RSS. Find the State Bar of Michigan and Legal Talk Network on Twitter, Facebook, and LinkedIn or download Legal Talk Network’s free app in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network or the State Bar of Michigan or their respective officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]