Access to Justice
Grow Your Family Law Practice With Limited Scope Services
By Jack Londen
Executive Director, California Access to Justice Commission
Over 70% of California divorce cases have no lawyer on at least one side.[i] This shows that most people believe they can’t afford to hire a lawyer – or that they don’t need to hire one -- for what may be the most important involvement they will ever have with courts. But those beliefs are too often mistaken. Family lawyers know that for some issues and some stages in a proceeding a self-represented person is highly likely to get a worse outcome than would a lawyer. And if the lawyer performs only those tasks that genuinely require a lawyer, many clients will be able to afford them.
The Access to Justice Commission pioneered Limited scope practice in California,[ii] and we have never stopped supporting it. [iii]We did so for several reasons. First, limited scope practice allows lawyers to handle distinct tasks – where their involvement matters most -- without taking responsibility for the entire matter. Second, this makes the matters more affordable for clients. Third, courts are best served when lawyers are involved in preparing the self-represented client or in presenting the parts that require a lawyer.
On October 4 at noon, the California Lawyers Association will present a self-study MCLE program prepared by the California Access to Justice Commission on Limited Scope Practice in Family Law.
Presented by two knowledgeable family law judges – Judge Mark Juhas and Judge Elizabeth Scully – from the Los Angeles Superior Court and by Ana M. Storey, Executive Director of Levitt & Quinn Family Law Center and Toby Rothschild, who was General Counsel of LAFLA, the program will get beyond generalities to some of the most significant practical topics faced by family law specialists who offer limited scope legal services. REGISTER HERE
FOR GOOD REASONS, FAMILY LAW IS THE MOST PREVALENT ARENA FOR LIMITED SCOPE LEGAL SERVICES
- Family law matters generally involve more frequent and more focused submissions and court appearances – smaller bites, and more of them -- than typical civil matters.
- Family law matters depend more heavily on issues of fact that are known to the parties, and less prevalently on discovery and testimony from third parties, than is typical in civil matters. So, the client depends less on the limited scope lawyer to become informed of the material facts.
- The vast majority of family law submissions are made using Judicial Council forms that a capable non-lawyer can complete, and a lawyer need only review. Drafted-from-scratch pleadings and motion papers are less prevalent than in civil matters.
- The high proportion of self-represented litigants in family law proceedings means that courts and court staffs are more accustomed to dealing with them. Good preparation and coaching by a lawyer can go further toward leveling the playing field.
- Jury trials are not within the competence of most self-represented litigants. But family law matters such as divorces and child custody do not involve jury trials.
CLEAR EXPLANATIONS AND CLIENT INFORMED CONSENT ARE ESSENTIAL
Obtaining the client’s informed consent prior to entering into a limited scope representation is required. The client must understand what the lawyer will be doing and what remains the client’s responsibility. You will want this to be not only clear to the client, but also clearly reflected in writing. The upcoming MCLE program will distribute forms, lists, exemplars, and templates that provide the menus for the selection of items the lawyer will serve à la carte, leaving the rest to the clients.
The designation of either certain discrete tasks the lawyer performs, or specific issues limits the scope of representation. By far the vast majority of limited scope representation arrangements are divided by task and not issue. These can include the following:
- Advice and coaching
- Document assembly
- Document drafting or “ghostwriting”
- Investigation and exhibit preparation
- Developing a strategy
- Procedural assistance
- Identifying and interviewing witnesses
- Participating in settlement negotiations or drafting settlement documents
- Court appearances for a specific hearing or on a specific issue
While the common assumption is that limited scope representation means appearing in court, in fact court appearances constitute a small percentage of the tasks that lawyers are asked to perform on a limited basis.
The word “limitation” in the phrase “limited scope representation” refers only to the scope of the representation, and never to liability. Pursuant to Calif. Rule of Prof. Conduct 1.8.8, lawyers cannot limit their liability to clients for the services they perform. . There are four basic ethical considerations which govern limited scope representation. These concepts are not difficult, but there are no exceptions. They are:
- Limitations on representation must be reasonable under the circumstances.
- Limitations on representation must be informed and should be in writing.
- Changes in scope must be memorialized.
- A lawyer must advise a client on related issues even if not asked.
ADVANTAGES TO THE LAWYER OF LIMITED SCOPE SERVICES
- Access to a wider range of potential clients. The vast majority of litigants can afford to pay for some legal services, even if traditional full-service remains financially out of reach.
- Reduce accounts receivable and improved cash flow. Agreement on specific à la carte tasks can facilitate agreement on the fees and can allow the lawyer to bill for and collect for one task before undertaking others.
- Better client relations. Clients who understand more about the proceeding and, especially, who feel that they are in control may be less likely to question your bill because they see the direct benefit to them of your work.
- Improved referral sources. Limited scope clients report higher satisfaction with the results than full-service litigation clients. Many limited scope clients – and full-service clients as well -- are either vaguely or overtly anti-lawyer. They assume they will be overcharged or even cheated. When they obtain a reasonable result for a reasonable fee -- much lower than a full-service attorney has quoted them -- they tend to tell their friends. Satisfied clients lead to more satisfied clients.
1 Bonnie Hough, Self-Represented Litigants in Family Law: The Response of California’s Courts, California L. Review (January 2010) found at http://www.californialawreview.org/self-represented-litigants-in-family-....