08/08/2016

CBA Ethics Committee

 

Formal Opinion 128: Ethical Duties of Lawyer Who Cannot Contact Client, Approved October 17, 2015; New Ethics Opinion 101: Unbundling/Limited Scope Representation, Approved May 21, 2016


Formal Opinion 128: Ethical Duties of Lawyer Who Cannot Contact Client, Approved October 17, 2015

Introduction and Scope

The problem of the “missing client” arises when the lawyer does not know where the client is or when the client is not responding to the lawyer’s communications. Many situations exist in which a lawyer retained to represent a client in a civil matter cannot initiate or maintain contact with that client. Perhaps the client retained the lawyer to pursue a lawsuit but then vanished during discovery or settlement discussions. A client may go missing between a lawyer’s initial meeting with the client and the expiration of the statute of limitations for the client’s claim, requiring the lawyer to consider whether to timely file a complaint to protect the client’s interests.

Alternatively, the lawyer might have been retained by the client’s insurance company to defend the client/insured in a lawsuit, but the lawyer cannot locate and communicate with the client in formulating a defense.1 This typically occurs pursuant to insurance policies in which the insured gives the insurer the right and duty to defend the insured against liability claims that the policy may cover. However, the lawyer may have difficulty locating the insured after receiving the referral. This scenario has become more common in Colorado since the enactment of CRS § 42-7-414, which requires a purchaser of a motor vehicle liability policy to designate an insurance carrier as the agent for service of process in the event that the insured cannot be located. Since this statute permits substitute service on the insurer for service on the insured, the fact that the defendant has gone missing does not prevent the lawsuit from moving forward. The “missing client” problem raises the following ethical questions: What happens if the lawyer is unable to make contact with a client in time to satisfy the deadline to file a pleading or otherwise act? May the lawyer undertake the representation on behalf of a missing client, and if so, what actions may the lawyer take on the client’s behalf? This opinion outlines the lawyer’s ethical duties and limitations in these situations.

In considering these questions, the Colorado Bar Association Ethics Committee (Committee) recognizes that other jurisdictions have reached divergent conclusions on issues involving missing clients. Compare N.C. State Bar Formal Ethics Op. 1, “Representation of Insurance Carrier after Insured Disappears” (2010) (concluding that a lawyer retained by an automobile insurance carrier to defend its missing insured in a negligence action may not file pleadings or appear in court on the insured’s behalf) and Utah State Bar Ethics Advisory Op. 04-01a (2004) (Utah Op. 04-01a) (opining that a lawyer representing an employer may not also represent a missing former employee because “the lawyer cannot receive any direction regarding the objectives of the representation” from the missing former employee and “the lawyer runs the risk of acting in contravention of the desires of the former employee.”), with State Bar of Cal. Standing Comm. on Prof. Resp. and Conduct Formal Op. 1989-111, “What are the ethical responsibilities of an attorney representing the defendant in a civil action wherein a complaint has been filed and served on the defendant, an answer is now due and the client cannot be located?” (1989) (Cal. Op. 1989-111) (opining that “the attorney may file an answer to the complaint to avoid reasonably foreseeable prejudice” to a client who goes missing after a complaint is filed) and Ky. Bar Ass’n Ethics Op. E-433, “Ethical obligations of a lawyer who is unable to locate a client in a civil matter” (2012) (Ky. Op. E-433) (concluding that the lawyer may answer or file an “appropriate pleading to protect the client’s interests” in certain “rare situations in which, prior to disappearing, the client expressly or impliedly authorized the filing of a claim or an answer, and provided the lawyer with sufficient information to do so”). The Committee believes that opinions allowing a lawyer to minimize prejudice to the client by taking actions to protect the client’s interests represent the better approach. The Committee notes, however, that there may be circumstances when the lawyer cannot take such actions without implicating other ethical considerations or when acting without conferring with the client would prejudice the client. In all circumstances, a lawyer must balance various ethical factors, including the duties of diligence, communication, and confidentiality to the client; the duty of candor toward a tribunal; and the duty not to make a false statement of material fact to third parties.

This opinion does not address the limitations that may arise in the insurance defense context with regard to the lawyer’s ability to inform the insurer of difficulties in locating the client. An insured client who fails to stay in contact with the retained lawyer may violate the cooperation clause typically found in liability insurance policies. See CBA Formal Op. 91 (discussing the lawyer’s ability to inform the insurer of information that may affect the client’s insurance coverage). This opinion does not address representation in criminal matters.

Syllabus

When the lawyer’s client is missing from the outset of the engagement or has gone missing since the representation began, the lawyer must take reasonable steps to locate the client and, whenever possible, seek continuances of court deadlines while continuing efforts to contact the client. If the lawyer concludes that a lawyer-client relationship exists, the lawyer may ethically undertake the representation and take such action as may be necessary in order to prevent immediate prejudice to the client’s interest. If, however, the litigation continues and the client cannot be located despite a diligent search, the lawyer ultimately may be required to withdraw from the representation.

Analysis

I. Creation of the lawyer-client relationship

Before undertaking the representation of a missing client, the lawyer must make a threshold determination of whether, in the lawyer’s professional judgment, a lawyer-client relationship exists. “[F]or purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists . . . . Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.” Colorado Rules of Professional Conduct (Colo. RPC) Preamble, cmt. [17].

Although the existence of a lawyer-client relationship is a substantive legal issue, there are ethical considerations as well. First, the client must consent to the representation. “An attorney-client relationship is one of agency and arises only when the parties have given their consent, either express or implied, to its formation.” Comm. on Prof’l Ethics and Grievances of Virgin Islands Bar Ass’n v. Johnson, 447 F.2d 169, 174 (3d Cir. 1971). “The lawyer may not ethically represent a vanished former employee unless the lawyer has an existing attorney-client relationship or the former employee agreed to the representation at the company’s expense prior to vanishing . . . .” Utah Op. 04-01a. Second, if the insurance company will be paying the lawyer’s fees, the client must consent to this arrangement. “A lawyer shall not accept compensation for representing a client from one other than the client unless . . . the client gives informed consent . . . .” Colo. RPC 1.8(f).

In the insurance defense context, the matter of consent must be evaluated in light of the language of the insurance contract. “The formation of a relationship between an attorney and his or her client is based upon contract, which may be either express or implied by the conduct of the parties.” Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1311 (Colo. App. 1998). The terms of the contract may delegate to the insurer permission to form the relationship. “[T]he insurance company can, on behalf of the insured, formulate the requisite attorney-client relationship between the defense counsel and the insured until such time as the insured manifests such action by word or deed as to disavow the attorney-client relationship. The consent of the insured to the establishment of the attorney/client relationship in this manner is implied by the insurance policy which has language to the effect that ‘We will defend at our expense, with attorneys of our choice, any suit against the insured.’” Penn. Bar Ass’n Ethics Op. 97-123 (1997). Alternatively, the insured’s consent may be inferred from the decision to purchase the policy in the first instance. See Hornberger v. Wendel, 764 N.W. 2d 371, 376 (Minn. App. 2009) (holding that insurer’s retention of defense counsel pursuant to a liability insurance policy created a lawyer-client relationship as a matter of law); Burke v. Lewis, 122 P.3d 533, 542-43 (Utah 2005) (holding that “appointment of counsel” for a missing defendant “was the best means of effectuating a just process and a fair result and that [the missing client’s] consent to such representation could be fairly implied” from the circumstances and his purchase of a malpractice insurance policy). See also Colo. RPC 1.0, cmt. [7] (“In general, a lawyer may not assume consent from a client’s or other person’s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter.”).

A lawyer retained by an insurer should consider Colo. RPC 1.8(f), which permits a lawyer to accept payment of a legal fee from a source other than the client only if three requirements are met: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independent judgment or the client-lawyer relationship; and (3) lawyer-client confidentiality is preserved. These requirements are individually defined in Colo. RPC 1.0(e) (informed consent), Colo. RPC 5.4(c) (independent judgment), and Colo. RPC 1.6 (confidentiality). As with the creation of the lawyer-client relationship, in the insurance defense context the absent client’s informed consent to third-party payment may be inferred from the terms of the insurance contract.

II. The lawyer’s ethical duties upon commencement of the representation

A. Cases in which the lawyer actually communicates with the client at the outset of the representation.

Diligence at the outset of a representation can avoid many “missing client” problems. “An attorney should be encouraged to treat most clients as though they are likely to disappear because doing so will significantly reduce the chances of it happening.” Allison Elizabeth Williams, “Missing Clients: What to Do When Your Client Has Vanished,” 28 J. Legal Prof. 247, 254 (2003-2004). When possible at the outset of a lawyer-client relationship, a lawyer should obtain information from the client that would enable the lawyer to make reasonable efforts to locate the client throughout the course of the representation. This could include obtaining multiple telephone numbers, physical addresses, and e-mail addresses for the client and obtaining contact information for other persons who may know the client’s whereabouts. A lawyer should direct a client to inform the lawyer if the client’s contact information changes.

When appropriate, a lawyer should advise the client at the outset of the representation that it is important for the lawyer always to be able to locate the client during the course of representation. Subject to Colo. RPC 1.2(c), the lawyer and client may agree to a course of action if the lawyer cannot locate the client, for instance, setting out the methods the lawyer will use to attempt to contact the client or actions the lawyer will take if the lawyer cannot locate the client. See CBA Formal Op. 95, “Funds of Missing Clients” (1993) (CBA Op. 95) (authorizing use of client funds to locate missing client). The client and lawyer may agree that if the client does not respond to the lawyer’s efforts to locate the client, the lawyer may terminate the representation. Colo. RPC 1.16(b)(5). The client also may authorize the lawyer to take some action on the client’s behalf, such as filing a complaint before a statute of limitations expires. As stated in comment [3] to Rule 1.2:

At the outset of a representation, the client may authorize the lawyer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

Similarly, the lawyer may ask the client for advance authority to settle a claim within a certain range. See Ky. Op. E-433 (“There may be rare cases where, prior to the client’s disappearance, the client set specific settlement parameters and authorized the lawyer to settle on his behalf. If the lawyer has clear authority, he or she may be able to act for the client, assuming there is no foreseeable prejudice to the client. . . .”); Williams, 28 J. Legal Prof. at 250 (stating that “when a client is missing, the best situation is for the attorney to have authority to consent to a settlement favorable to the missing client’s interests”); but see State Bar of Ariz. Ethics Op. 06-07, “Communication; Settlement Authority; Fee Agreements; Conflict of Interest” (2006) (opining that a lawyer may not use a fee agreement giving the lawyer unfettered discretion to unilaterally settle cases).

B. Cases in which the representation is initiated by contract without the client’s actual involvement.

When a lawyer-client relationship exists, but the lawyer has not previously received direct instruction from the client and has not received direction from the client on how to act, for instance, in the insurance defense context, then immediately upon receiving the assignment the lawyer should exercise reasonable efforts to locate the client. This may include, as appropriate, hiring a professional investigator, searching public records, and/or contacting family or friends of the client. Alaska Bar Ass’n Ethics Op. 2011-4, “Duties of an attorney in a criminal appeal when the client cannot be contacted” (2011) (Alaska Op. 2011-4) (“A ‘reasonable inquiry’ may consist of, but is not limited to, attempts to contact the client by telephone, letter to client’s last known address, personal visit to the client’s last known address, electronic mail inquiry, internet search, post office search, registry of motor vehicle search, or newspaper publication.”). “In all cases the attorney must expend a reasonabl[e] amount of time and funds so as to insure that the attorney makes a diligent effort to locate the client. Since each case is unique, the attorney should evaluate what methods of search would be reasonable to locate the client.” Cal. Op. 1989-111. “Even without such a provision in a retainer agreement, a lawyer may expend a reasonable amount of the client’s unexpended funds in order to locate the client.” CBA Op. 95.

Even if the client cannot be located, the lawyer still owes the client duties of diligence, loyalty, and communication. “A lawyer shall act with reasonable diligence and promptness in representing a client.” Colo. RPC 1.3. “Loyalty [is an] essential element[] in the lawyer’s relationship to a client.” Colo. RPC 1.7, cmt [1]. When someone other than the client retained the lawyer, the lawyer represents the client, not the third party. CBA Op. 91 (“This Committee has concluded that in the context of this tri-partite relationship, the better rule is that the lawyer’s client is the insured and not the carrier.”). The lawyer must protect the interests of the client, even though the insurer may be exercising control over, and paying for, the defense. “The attorney’s ethical duty is to assure that the interests of the insured are protected, while at the same time fulfilling the insured’s contractual obligations to the carrier against a backdrop where the insurance company, by virtue of financing the defense, may effectively control the result and may have its own interests at stake.” CBA Op. 91.

A lawyer also has a duty to communicate with the client. “Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.” Colo. RPC 1.4, cmt [1]. However, “a standard of reasonableness under the circumstances determines the appropriate measure of consultation.” Restatement (3d) Law Governing Lawyers (Rest.) § 20, cmt. c (2000); see also Burke, 533 P.3d at 540 (permitting representation of a missing client and finding that “just because representation of [the missing client] will not neatly accord with the general assumptions underlying the communication requirements contained in the rules of professional conduct, it does not necessarily follow that the rules prohibit the representation entirely”). The Committee recognizes that in situations where the lawyer cannot locate the client, the lawyer’s duties of diligence and communication may be in tension. On the one hand, if the lawyer takes action without first communicating with the client, the client may be deprived of the opportunity to direct the objectives of the representation. On the other hand, if the lawyer refrains from taking action until the client can be located, the client may suffer prejudice from, for example, missing a statute of limitations or having a default judgment entered.

The Committee concludes that this tension should be resolved in favor of protecting the absent client’s interests. This conclusion is supported by the Committee’s previous statement regarding a lawyer’s duties representing clients in dependency and neglect proceedings: “An attorney may not decline to advocate on behalf of the client simply because the client does not attend court hearings or provide direction to the attorney. An attorney must still exercise professional judgment as to how to advocate for the client’s best interests.” CBA Formal Ethics Op. 114, “Responsibilities of Respondent Parents’ Attorneys in Dependency and Neglect Proceedings” (2006, modified 2010). Although that opinion addressed a different area of practice, its conclusion offers guidance with respect to a lawyer’s duty to take action to protect the client who is not available to consult about decisions.

III. What action may the lawyer take?

In determining the extent of actions a lawyer may take on behalf of an absent client, the primary consideration should be avoiding prejudice to the client to the extent feasible. Cal. Op. 1989-111. This may include filing pleadings or briefs to preserve a client’s rights or delaying proceedings to allow the lawyer more time to locate the client. Alaska Op. 2004-3, “Responsibilities of an Attorney When a Client Cannot Be Contacted” (2004) (Alaska Op. 2004-3) (a lawyer may file a complaint before a statute of limitations expires “if she believes that failing to file would materially and adversely affect the client’s interests”); Rest. § 134, cmt. b (“In an emergency situation in which the lawyer must take action to protect the interests of the client, as in filing an answer to avoid default, the lawyer may take such action even if a conflict appears to exist, but must also promptly take action to address the conflict.”). Whether a pleading can be prepared will depend on the facts and circumstances of each case. The lawyer must consider whether the client has authorized the action and whether the lawyer has enough information to act. See Ky. Op. E-433 (lawyer may provide “temporary protection” for the client by answering or filing other pleadings if the lawyer has the express or implied authorization and sufficient information).

A lawyer may take action on behalf of a client as is impliedly authorized to carry out the representation. Colo. RPC 1.2(a). If a lawyer reasonably believes the client has authorized the lawyer to take some action and is relying on the lawyer to do so, the lawyer may act on behalf of the client. Alaska Op. 2004-3. The client’s prior communications with the lawyer may provide authorization to take actions like filing pleadings or briefs. Alaska Op. 2011-4 (lawyer must file notice of appeal and may file briefs when client previously directed filing of notice of appeal). In some circumstances, when a client has previously directed a lawyer to take action and the lawyer cannot communicate with the client following this direction, the lawyer must take the directed action. Colo. RPC 1.2, cmt [3].

Consent may be determined from circumstances other than the client’s communications. For instance, when an insurance policy expressly calls for the insurer to provide a defense, the client has impliedly consented to the insurance company’s payment of the lawyer’s fees and the lawyer’s preparation of a defense simply by purchasing the policy. Colo. RPC 1.0, cmt. [7]; Colo. RPC 1.4, cmt. [2]. Rest. § 134, cmt. d (“Informed client consent may be effective with respect to many forms of direction, [including] informed consent to general direction of the lawyer by another, such as an insurer or indemnitor on whom the client has contractually conferred the power of direction.”).

The lawyer may have enough information to prepare a pleading from prior consultation with the client or may obtain information from a third party, for instance, the client’s insurance company, concerning the facts of the case. However, if there is not enough information available, the lawyer must consider whether there is an adequate basis for preparing the pleading. In some circumstances, the lawyer will not have enough information to act on the client’s behalf. Colo. RPC 3.1 (“What is required of lawyers … is that they inform themselves about the facts of their clients’ cases … and determine that they can make good faith arguments in support of their clients’ positions.”); see also CRCP 11(a). The lawyer also must be careful to avoid misleading the court with false statements of fact regarding the scope of the lawyer’s investigation or the client’s participation in preparing the pleading. Colo. RPC 3.3. The lawyer representing an absent defendant must consider whether the client has compulsory counterclaims and, if so, must take appropriate action not to waive such counterclaims. This is pursuant to the principle that even if the lawyer’s retention is limited to defending claims against the client and not to prosecute counterclaims, “[t]o avoid loss of a counterclaim, insurance defense counsel should inform the insured about potential counterclaims to the extent necessary so the insured can decide whether to seek independent counsel.” CBA Op. 91.

In other circumstances, the lawyer may seek to postpone proceedings to allow additional time for the lawyer to locate the client. For example, Colo. RPC 1.2(a) mandates that “[a] lawyer shall abide by a client’s decision whether to settle a matter.” If mediation is scheduled but the lawyer cannot locate a client prior to mediation and the client has not authorized the lawyer to settle the case, the lawyer should postpone the mediation until the lawyer can locate the client. See also Williams, 28 J. Legal Prof. at 254 (noting that a lawyer may settle a case on behalf of a client only if the client has previously authorized the lawyer to settle).

Just as an insurance policy may provide the client’s implied consent to the creation of a lawyer-client relationship, the policy may give the insurer the right to exercise the client’s control of settlement of claims covered by the insurance. The lawyer should consider carefully the extent to which the insurance contract gives the insurance company authority to settle. If (1) the insurance contract clearly gives the insurer the right to settle claims without the consent of the insured, (2) the lawyer has made reasonable efforts to contact the client regarding the settlement proposal, (3) the proposal does not impose obligations on the client to the claimant beyond what the insurer is paying under the settlement, (4) the lawyer determines in the exercise of independent professional judgment that the settlement is appropriate for the client, and (5) the lawyer has not received express instructions to the contrary from the insured client, then the lawyer may settle a claim if such action is warranted. Mitchum v. Hudgens, 533 So.2d 194, 202 (Ala. 1988) (where an insurance policy gives the insurer the exclusive right to settle, a lawyer may follow the insurer’s settlement instructions without prior approval from the client). In evaluating a settlement proposal covered by insurance, the lawyer also should consider whether the settlement would cause negative consequences for the client, such as the reporting of the settlement to a professional licensing authority. Authority to settle claims against an insured client would not, by itself, authorize the lawyer to agree to a release or dismissal with prejudice of counterclaims that the client might have against the claiming party. Outside the context of settling a claim covered by insurance, the Committee is unaware of circumstances in which a lawyer could enter into a settlement agreement without the client’s express authorization. Ky. Op. E-433 (stating it is very unlikely that a lawyer could ever negotiate a settlement on behalf of a missing client); Colo. RPC 1.2(a); see also Or. State Bar Ass’n, Formal Ethics Op. 2005-33, “Declining or Terminating Representation: Withdrawal When Client Not Found” (2005) (stating that a lawyer may not accept even a favorable settlement proposal for her client absent the client’s consent).2

If the lawyer cannot locate a client prior to the deadline to respond to interrogatories served under CRCP 34(a), the lawyer should request an extension of time to permit the lawyer more time to locate the client. As with filing a complaint or answer without conferring with the client, the lawyer should be mindful of Colo. RPC 3.3 and Colo. RPC 4.1 and not make any false statements of material fact to a tribunal or third party regarding the client’s availability or participation in the preparation of the pleading.

In preparing an answer for a missing client in the insurance defense context, the lawyer should be attentive to issues in the case relating to insurance coverage. As the Committee stated in Opinion 91, “Defense counsel must be alert to ethical duties which prohibit actions by the attorney which favor the non-coverage interests of the carrier over the interests of the insured to establish coverage . . . . The existence of a coverage question should not be allowed to interfere with the lawyer’s duty to exercise independent professional judgment on behalf of the insured.”

The lawyer must determine whether the lawyer’s decision to undertake representation of the absent client might otherwise be detrimental to the client’s interests. The lawyer should not enter an appearance for a missing client (even if the client or the insurance carrier previously authorized such entry) if to do so would be prejudicial to the client or would compromise the defense of the case:

Because the lawyer cannot receive any direction regarding the objectives of the representation, the lawyer runs the risk of acting in contravention to the desires of the [absent client] . . . . [I]f the lawyer took action that subjected the [absent client] to the jurisdiction of the court, then the [absent client] could be substantively prejudiced by lawyer’s actions.

Utah Op. 04-01a.

III. Limitations on the lawyer’s representation

Because consent is predicate for many aspects of the lawyer-client relationship, the lawyer must avoid taking action that fails to fully take into account the missing client’s right to give—or to deny—necessary consents. For example, an absent client is unable to provide consent to waive a concurrent conflict of interest. Colo. RPC 1.7. Therefore, in the insurance defense context, the lawyer should carefully review any reservation of rights letter before accepting the referral. Similarly, the lawyer should decline the joint defense of an employer and an absent former employee because the former employee cannot consent to the potential conflict of interest between the two clients. See Colo. RPC 1.7(b)(4) (requiring “informed consent, confirmed in writing” of a concurrent conflict of interest); Colo. RPC 1.7, cmt. [18] (“When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved,”); see also Utah Op. 04-01a (advising against joint representation of employer and absent former employee because “the attorney cannot make the explanation required by the rule, cannot obtain the [absent] client’s consent to representation and would therefore violate Rule 1.7”).

After acting on behalf of the client, the lawyer should consider whether continued representation of the absent client is possible. Withdrawal or terminating the lawyer-client relationship may be required if the client cannot be located within a relatively short period of time. People v. Silvola, 915 P.2d 1281, 1284-85 (Colo. 1996) (sanctioning lawyer for purporting to represent absent client for 19 months). Other jurisdictions are in agreement:

[W]hat are the ethical obligations of a lawyer who, for reasons beyond his control, is unable to communicate with or secure instructions from his client in a pending action? His duty would appear to be to protect the interests of his client to the extent that he can reasonably do so and, when the lawyer cannot reasonably carry out his employment effectively, he should relieve himself from those duties by seeking withdrawal . . . taking care to obtain permission of the court where needed . . . and to avoid foreseeable prejudice to the rights of the client.

State Bar of Ariz. Ethics Op. 80-11 (1980). Accord Cal. Op. 1989-111 (“Under the facts presented, the attorney is severely limited in the ability to act on behalf of the client without the client’s express authority. The attorney has a sufficient basis to withdraw . . . .”); Ky. Op. E-433 (“In most civil matters, the lawyer will have to withdraw, because the lawyer will likely be unable to meet the ethical obligations imposed by the Rules of Professional Conduct without the client’s participation.”).

As with the decision to act on behalf of an absent client, if the lawyer continues to be unable to contact the client and therefore has grounds to withdraw, the lawyer’s primary consideration in deciding when to withdraw should be minimizing the potential prejudice to the client. Generally speaking, the lawyer should stay in the case as long as it is feasible to do so. The need to obtain information from the client should be balanced against preventing prejudice to the client if possible. When withdrawing from representation due to a client’s unavailability or unresponsiveness, a lawyer “shall take steps to the extent reasonably practicable to protect a client’s interests.” Colo. RPC 1.16(d). When a lawyer has reason to believe that the client is receiving communications from the lawyer but not responding to them, the lawyer must inform the client of the lawyer’s intent to withdraw from the representation prior to withdrawing. The lawyer should pursue means similar to those previously used to locate the client to notify the client of the withdrawal and should “take care to document all steps taken to give notice to the client.” Cal. Op. 1989-111. The lawyer should be mindful of the fact that the court is under no obligation to grant a request for withdrawal.

IV. Disclosure that the client is unavailable

Ordinarily the lawyer’s pleading should not suggest that the absent client played a role in its preparation. This suggestion could violate Colo. RPC 3.3.

In discussing the propriety of the lawyer’s disclosure of the unavailability of the client to opposing counsel and the court, a California opinion states the factors to be considered:

The attorney has a duty to maintain inviolate the confidence of his client and at every peril to himself to preserve the secrets of his client. The attorney also has a duty not to mislead the judge or a judicial officer by an artifice or false statement of fact or law. The concealment of material information is as misleading as an overtly false statement. Disclosure of the inability to locate the client could be detrimental to the client’s interests.

Clearly, the attorney is under no obligation to inform opposing counsel that the client cannot be located. However, the attorney may reveal such information as may be necessary to formulate the basis for a motion to withdraw.

Cal. Op. 1989-111 (citations omitted).

There may be circumstances where disclosing the client’s absence will be detrimental to the client’s interests. Id. However, if the desire to preserve the confidence of “information relating to the representation” conflicts with the lawyer’s duty of candor to the court, then the lawyer must truthfully inform the court of the client’s absence. Colo. RPC 1.6; see also CBA Op. 123. However, the lawyer should take care to reveal such information only to the extent reasonably necessary to comply with Colo. RPC 3.3 or as otherwise permitted by Colo. RPC 1.6. Colo. RPC 3.3, cmt. [15].

Conclusion

Many missing client problems can be avoided through careful client intake procedures, including obtaining multiple means of contacting the client and obtaining the client’s informed consent to methods the lawyer will employ to handle the case should the client become unavailable. Obtaining permission to file pleadings or settle the case within a predetermined range can resolve future problems. A lawyer who has formed a lawyer-client relationship with an absent client may file pleadings on the client’s behalf to avoid the expiration of a statute of limitations or to prevent entry of a default judgment against the client. However, any such pleadings must not imply that the client actively participated in their preparation. If the lawyer conducts a diligent and well-documented search but remains unable to locate an absent client, and has reached the point that further representation is impossible without input from the client, the lawyer should withdraw. In preparing the withdrawal, the lawyer must again be diligent in attempting to contact the client to notify the client of the withdrawal, and may reveal to the court and opposing counsel the minimum information necessary to support withdrawal. Even in the course of withdrawing, the lawyer must endeavor not to prejudice the interests of the absent client.

Notes

1. This opinion uses “client” to refer to the insured person whom the insurer retains the lawyer to defend. “[T]he insured is unquestionably a client to whom the attorney owes the ethical duties owed to any client. . . . [T]he carrier is not a client simply by retaining the attorney to defend its insured. . . .” CBA Op. 91, “Ethical Duties of Attorney Selected by Insurer to Represent Its Insured” (1993, Addendum 2013) (CBA Op. 91).

2. The Colorado Supreme Court has not addressed the issue of the client’s contractual delegation of settlement decision-making authority to the insurer. However, in older cases, the Court addressed the client’s express settlement authority. Cross v. Dist. Ct., 643 P.2d 39 (Colo. 1982) (holding “an attorney does not have the authority to compromise and settle the claim of his client without the knowledge or consent of his client”); Radosevich v. Pegues, 292 P.2d 741 (Colo. 1956) (same); Lewis v. Vache, 20 P.2d 554 (Colo. 1933) (same); Hallack v. Loft, 34 P. 568 (Colo. 1893) (same).

 


 

New Ethics Opinion 101: Unbundling/Limited Scope Representation, Approved May 21, 2016

Introduction

In 1998, the Colorado Bar Association Ethics Committee (Committee) adopted Formal Opinion 101, entitled “Unbundled Legal Services.” Since then, the use of unbundling (also known as limited scope representation) has become more widespread in Colorado and throughout the country. (In this opinion, we use the terms unbundling and limited scope representation interchangeably.) Originally conceived as a means to encourage pro bono service by attorneys who would agree to participate in only part of a case, limited scope representation is now used as a means of providing legal representation in both pro bono cases and cases in which private attorneys charge a fee. Many private attorneys have found that providing limited scope representation is a useful means to provide some legal representation to modest means clients who could not otherwise afford to hire an attorney for full representation. This use of limited scope representation has been driven, in part, by the increasing number of pro se litigants. For example, statistics for fiscal year 2015 from the Colorado judicial branch indicate that 75% of all litigants in domestic relations cases are proceeding pro se.1 Some of these pro se litigants have sought limited scope representation from attorneys to enable them to better litigate their cases.

The term “unbundling” was coined by Forrest Mosten, an attorney, mediator, and professor, in a 1994 law review article.2 As noted in the original Formal Opinion 101, Mosten described the “full bundle” of representation in litigation as consisting of gathering facts, advising the client, discovering the facts of the opposing party, performing legal research, drafting correspondence and documents, negotiating, and representing the client in court.3 Before this term was coined, many attorneys provided limited scope representation by providing only non-litigation advice to a client or by limiting their services to the drafting of correspondence.

Since Mosten’s article was published, attention has turned to providing limited scope representation in judicial proceedings. Accordingly, in 1999, following the adoption of Formal Opinion 101, the Colorado Supreme Court amended Rule 1.2(c) of the Colorado Rules of Professional Conduct (Colo. RPC) to provide expressly that lawyers may limit the scope of their representation. This change was accompanied by amendments to Rules 11(b) and 311(b) of the Colorado Rules of Civil Procedure (CRCP) to allow lawyers to “ghostwrite” pleadings for self-represented litigants without entering a formal appearance in, respectively, Colorado district court and county court cases.

In 2011, the Colorado Supreme Court adopted CRCP 121, § 1-1(5), which required that attorneys file a notice of limited appearance and a notice of completion of limited appearance when providing limited scope representation in a court case. In 2012, the Colorado Supreme Court adopted Colorado Appellate Rule 5(e) to allow for unbundling in appellate proceedings in specific instances. The Supreme Court adopted all of these changes to encourage lawyers to engage in unbundling.

During the past decade, most states have amended their equivalent of Colo. RPC 1.2(c) to allow for limited scope representation. Similarly, many states’ ethics committees have promulgated opinions regarding different aspects of unbundling.4 Significantly, in 2013, the American Bar Association (ABA) House of Delegates approved Resolution 108, which, among other things, “encourages practitioners, when appropriate, to consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services.”5

Currently, limited scope representation takes four forms: (1) providing limited litigation assistance to self-represented litigants in court cases; (2) ghostwriting pleadings or briefs for self-represented litigants; (3) providing non-litigation advice to self-represented litigants; and (4) transactional assistance.

Outside the courtroom, unbundled legal services are both commonplace and traditional. For example, clients often negotiate their own agreements, but before the negotiation, ask a lawyer for advice on issues that are expected to arise. Sometimes, a lawyer’s only role is to draft a document reflecting an arrangement reached entirely without the lawyer’s involvement. Clients involved in administrative hearings (such as zoning or licensing matters) may ask their lawyer to help them to prepare for the hearing, but not to appear at the hearing. In each of these situations, the lawyer is asked to provide discrete legal services, rather than handle all aspects of the total project.

Syllabus

As noted, the Colorado Supreme Court amended Colo. RPC 1.2(c) to provide expressly for limited scope representation. This opinion discusses the provisions of that rule and related rules that enable lawyers to provide limited scope representation in court cases and to ghostwrite pleadings and briefs for self-represented litigants. This opinion also addresses other rules of professional conduct that lawyers engaged in limited scope representation must follow.6

I. Limited Scope Representation Authorized by Colo. RPC 1.2(c)

The Colo. RPC and CRCP permit limited scope representation. Under Colo. RPC 1.2(c), “[1] [a] lawyer may limit the scope or objectives, or both, of the representation if [2] the limitation is reasonable under the circumstances and [3] the client gives informed consent.”

Colo. RPC 1.2(c)’s provision that a lawyer may limit the scope of the representation means that in either a litigation or a non-litigation context, a lawyer may represent a client in only part of a case, transaction, or other legal matter. As discussed below, the better practice is that a lawyer should set forth the specific scope of the limited representation in a written fee agreement or other writing.

Additionally, attorneys must analyze each case or transaction to ensure it is appropriate for limited scope representation. There may be circumstances where the case is of a level, or other circumstances are present, such that the attorney should conclude that providing unbundled services is not reasonable. In those instances, the attorney, at the very least, must advise the client of that conclusion, and potentially, should decline to represent the client on a limited scope basis.

Colo. RPC 1.2(c) also requires that the limited scope representation be reasonable based on the facts of the particular case. For example, it may be reasonable for a lawyer to represent a client in a post-decree dissolution of marriage case on an issue concerning modification of child support. In a landlord-tenant case, it may be reasonable to represent the client on the issue of possession or damages. However, in a dissolution of marriage case, it would not be reasonable to represent the client only on the issue of maintenance, because courts have held that issues concerning the division of marital property, maintenance, and attorney fees are intertwined.

Similarly, it may be reasonable to provide limited representation in a specified part of a court case. For example, it may be reasonable to represent a client with respect to a motion for summary judgment or a motion to dismiss, even if the client does not want representation on subsequent trial proceedings if either motion is denied.

Colo. RPC 1.2(c) also requires a client to give informed consent before a lawyer provides limited scope representation. Informed consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See Colo. RPC 1.0(e). The crux of this requirement is that “[t]he lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision.” Colo. RPC 1.0, cmt. [6]. Thus, the lawyer must do more than explain the significance of the decision to hire an attorney for limited scope representation; the lawyer also must make sure the client is sufficiently informed to be able to consider available options and risks prior to making that decision.

The lawyer’s explanation should include advising the client that proceeding with full representation may be desirable because the client will be represented for the entire case, but that such representation is likely to be more costly. The explanation also should advise the client that it would be less expensive, at least in the short term, to proceed without legal representation and that proceeding without any representation may lead to mistakes that could be expensive to fix later or mistakes that might not be fixable.

Further, informed consent requires that the lawyer advise the client of potential legal pitfalls that might result from choosing to limit the scope of representation and the likelihood that the client will need additional legal advice later. For example, the attorney should inform the client when, after the conclusion of the limited scope representation, a pending discovery request may require greater client effort to follow up without legal assistance. See L.A. Cty. Bar Ass’s Prof. Resp. & Ethics Comm., Formal Op. 502, “Lawyers’ Duties When Preparing Pleadings or Negotiating Settlement for in Pro Per Litigant” (1999).

In the case of limited scope representation, a prerequisite to a client’s informed consent is an explanation of exactly which legal services the lawyer will provide and a discussion of additional legal issues that might arise after the completion of the limited scope representation. See Colo. RPC 1.4(a)(2) (“A lawyer shall . . . reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”). ABA Formal Comm. on Ethics & Prof. Resp., Formal Op. 472, “Communication With Person Receiving Limited-Scope Legal Services” (2015) (ABA Op. 472), recommends that lawyers providing limited scope representation confirm with the client the scope of the representation—including the tasks the lawyer will perform and not perform—in a written document that the client can read, understand, and refer to later.

Additionally, a lawyer who provides limited services as part of a legal clinic, legal advice hotline or pro se counseling program, must obtain the client’s consent to limited scope representation and advise the client of the potential need for further legal assistance after the initial consultation. See Colo. RPC 6.5, cmt. [2].

Under CRCP 11(b) and 311(b), a pleading or paper drafted by an attorney for a pro se party must provide the attorney’s name, address, telephone number, and registration number. In providing such assistance, the attorney certifies that, to the best of the attorney’s knowledge, information, and belief, the pleading or paper (1) is well-grounded in fact based on a reasonable inquiry, (2) is warranted by existing law or good faith arguments for the extension of the law, and (3) is not being used to harass, cause unnecessary delay, or needlessly increase the cost of litigation. However, drafting the pleading under CRCP 11(b) or CRCP 311(b) does not constitute an entry of appearance by the attorney.

Alternatively, a client who wishes to appear pro se can find many forms on the Colorado Judicial Branch website that can be used to file motions, stipulations, or complaints with the courts. See www.courts.state.co.us/Forms/Index.cfm. Forms are available for topics including adoption, appeals, criminal matters, divorce and other family matters, eviction and foreclosure, identity theft, small claims, and trusts, wills, and estates. An attorney whose client seeks limited scope representation in order to appear pro se should be familiar with these forms to properly advise the client about these free resources. Limited scope representation can include advising the client on how and when to fill out and submit these forms. Under CRCP Rule 11(b) and 311(b), an attorney who helps a client complete these forms is not required to put his or her name, address, and registration number on the forms.

Perhaps the most commonly known form of unbundled legal services is the practice of ghostwriting pleadings, motions, and other documents. With the ever-growing number of pro se litigants and the corresponding need for low, or lower, cost legal services, clients and consumers are seeking more options, and lawyers are finding a way to fill this demand through ghostwriting, or providing documents written by lawyers for use by pro se parties in litigation.

In amending Colo. RPC 1.2(c), the Colorado Supreme Court expressly permitted ghostwriting and limited scope representation, and therefore does not share the candor concerns—when unbundled representation is handled properly—expressed in some states’ ethics opinions and by the federal district court in Colorado.7

Many states have cited the duties of candor to the tribunal and fairness to opposing parties and counsel as the bases for concerns with regard to ghostwriting and limited scope representation generally.8 Some state ethics opinions have gone so far as to conclude that ghostwriting is automatically a fraud upon the court. Other states have determined that ghostwriting may be permissible without restrictions. Unbundling is not permitted in the federal district court in Colorado, with one limited exception. See Johnson v. Bd. of Cty. Comm’rs, 868 F. Supp. 1226, 1232 (D. Colo. 1993) (unbundling prohibited); D.C. COLO. LAttyR. 2(b)(1) (declining to adopt Colo. RPC 1.2(c) and 6.5 “except, that if ordered, an attorney may provide limited representation to a prisoner in civil actions”); D.C. COLO. LAttyR. 2(b)(5) (declining to adopt Colo. RPC 6.5).

II. Applicability of All Rules of Professional Conduct

Attorneys practicing in the area of limited scope representation should be aware of the ethics rules governing such practice and ensure they are compliant given the activities they propose to undertake. Doing so should ensure the attorney can accomplish the dual goals of providing assistance to people who may need a lesser amount of assistance, or who cannot afford full case representation, while still maintaining compliance with all applicable Colo. RPC.

Attorneys must be aware that, even in the context of limited scope representation, all of the Colorado Rules of Professional Conduct apply, and the limited scope case should be conducted consistent with the attorney’s professional obligations. An attorney’s responsibilities remain the same—whether he or she represents a client for an entire case, or only on a limited basis for a specific portion of a case.

An agreement to limit legal representation does not exempt a lawyer from the duty to provide competent representation under Colo. RPC 1.1. A lawyer must ensure that the limited scope representation is sufficient for the client to meet his or her legal objective. See Colo. RPC 1.2, cmt. [7]. For example, a lawyer should not agree to limit the time allotted to the client’s case such that the lawyer could not provide sufficient advice upon which the client could rely.

Attorneys engaging in limited scope representation must communicate with their clients to the extent necessary to keep the client reasonably informed regarding the representation and to provide legally sound advice to the client, as stated in Colo. RPC 1.4. Additionally, the fee charged must be reasonable for the work performed, based on what the attorney will actually do for the client, consistent with Colo. RPC 1.5. Attorneys also must ensure there are no conflicts in the representation, pursuant to Colo. RPC 1.7.

III. Fee Agreements

Given that the arguments in favor of limited scope representation often center on the issue of affordability and access to justice, attorneys should give careful thought to the fees charged for various tasks and must make sure that the fees are reasonable under the circumstances. See Colo. RPC 1.5(a).

A lawyer providing limited representation to a new or only occasional client also must comply with Colo. RPC 1.5(b), which states that, “[w]hen the lawyer has not regularly represented the client, the basis or rate of the fee and expenses shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.” Although Rule 1.5(b) requires only a written statement of the basis or rate of the fee and expenses, it is desirable for attorneys to include in their written communication the terms of limited scope representation, including the particular limited services that the attorney will render. Such written communication may be in the form of a written fee agreement. ABA Op. 472 recommends that in accord with Model Rule 1.5(b), lawyers providing limited scope representation confirm with the client the scope of the representation “in writing that the client can read, understand, and refer to later.” Providing such information in writing will help provide clarity to both the attorney and the client regarding the nature of the limited scope representation.

In some circumstances, as the case progresses, a client may wish to retain the lawyer to do more than originally agreed or to provide full representation. In that instance, the lawyer should confirm in writing any changes in the basis and rate of the fee. This written confirmation may be in the form of an addendum to the original fee agreement or an amended fee agreement. See Colo. RPC 1.5(b). The new or amended written communication should define the scope of the additional representation, outlining the work to be undertaken and the new fee to be charged, whether flat or hourly. As with any contract for legal services, an attorney may not seek to prospectively limit his or her liability in the agreement. See Colo. RPC 1.8(h)(1).

IV. Unbundled Services and Candor to the Tribunal

When a lawyer provides limited or unbundled representation to a client who has a matter before a tribunal, the lawyer’s conduct may implicate Colo. RPC 3.3, which requires candor to the tribunal.9 Colo. RPC 3.3(a)(1) provides that “[a] lawyer shall not knowingly . . . (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” This duty would be triggered if a client who is receiving limited representation before a court, typically through filings, gives the court the misimpression that the client is proceeding pro se, without any attorney assistance. In these and similar circumstances, the lawyer must correct any misapprehension that the court may have by disclosing the fact that he or she is providing limited representation.

Problems regarding an attorney’s duty of candor to the court are likely to be minimized by CRCP 121, § 1-1(5), which requires lawyers engaged in limited scope representation to file and serve with the court, other parties, and any attorneys a notice of appearance of limited scope representation and a notice of completion of the limited scope representation. See Judicial Department Forms (JDF) 630, 631, and 632 (civil matters); JDF 640, 641, and 642 (appeals); JDF 1334, 1335, and 1336 (family law matters). The purpose of this provision is to implement CRCP 11(b) and 311(b) in accordance with Colo. RPC 1.2. See CRCP 121, § 1-1(5) (Comm. Cmt.). See www.courts.state.co.us/forms/Index.cfm. Nevertheless, in some circumstances, a lawyer may need to advise the court and opposing counsel of his or her entry of limited scope representation in the event that the court or the opposing counsel has not received or does not appear to have read those documents. CRCP 121, § 1-1(5). Ordinarily, if a ghostwriting lawyer complies with CRCP 11(b) or 311(b), as discussed above, that will satisfy Colo. RPC 3.3, too.

Additionally, Colo. RPC 3.4(c) provides that “[a] lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Accordingly, unlike the situations considered by the minority of other ethics committees cited above, CRCP 11(b)’s and CRCP 311(b)’s express requirement that the lawyer disclose his or her participation in providing ghostwriting services, combined with Colo. RPC 3.4(c)’s mandate that a lawyer follow the rules of a tribunal, makes it clear that a lawyer owes an ethical obligation to disclose his or her participation in providing unbundled services, unless the lawyer assists a pro se party in “filling out pre-printed and electronically published forms that are issued by the judicial branch for use in court.” See CRCP 11(b) and 311(b).

A lawyer providing limited representation in court should inform the client that the lawyer will be required to disclose the limited representation to the court and opposing counsel. See CRCP 121, § 1-1(5); see also ABA Op. 472 (“These issues would best be resolved at the inception of the client-lawyer relationship by the client giving the lawyer providing limited scope representation informed consent to reveal to opposing counsel what issues should be discussed with counsel and what issues can be discussed with the client directly.”). However, when a lawyer provides only consultation, the lawyer’s involvement need not be disclosed to opposing counsel.

V. Advertising

An additional consideration is whether a lawyer may advertise or market the fact that he or she provides unbundled legal services. For example, a number of lawyers have used Internet-based platforms to advertise and even supply unbundled legal services for many years. See William Hornsby, Improving the Delivery of Affordable Legal Services Through the Internet: A Blueprint for the Shift to a Digital Paradigm (1999), at 4 (“Innovative uses of the Internet, or the adaptation of digital strategies, are being employed to overcome operational inefficiencies in personal plight representation in both full-service models and unbundled services.”); N.C. Formal Eth. Op. 2005-10, “Virtual Law Practice and Unbundled Legal Services” (2006) (N.C. Op. 2005-10) (opining on a virtual law firm’s desire to “offer and deliver its services exclusively over the internet,” including advertising and providing unbundled legal services).

Colo. RPC 7.2(a) permits a lawyer to “advertise services through written, recorded or electronic communication, including public media.” If a lawyer providing unbundling services elects to advertise that fact, he or she may do so as long as he or she ensures compliance with Colo. RPC 7.2(b)-(c), which concerns the costs of advertising, referral agreements, and including the name and office address of at least one lawyer or law firm responsible for advertising content. Additionally, the lawyer’s advertisements or communications about the unbundled services must not be false or misleading. See Colo. RPC 7.1(a). Further, the lawyer may not provide communications or advertisements in a form that resembles a legal pleading or formal legal document, to avoid being misleading or creating a misapprehension by the recipient. See Colo. RPC 7.1(c). When describing unbundled services, the lawyer should be clear and accurate about what fees and costs may be charged and should avoid using terms that are likely to be misleading if they cannot be substantiated. See Colo. RPC 7.1, cmt. [5] (“Characterizations of a lawyer’s fees such as ‘cut-rate,’ ‘lowest,’ and ‘cheap’ are likely to be misleading if those statements cannot be factually substantiated.”).

Further, a lawyer who advertises on the Internet the provision of unbundled services should be clear to limit the statements to legal matters in Colorado or other states where the lawyer is licensed so that the lawyer is not unwittingly advertising services that cannot be performed because of unauthorized practice of law (UPL) concerns. See Colo. RPC 5.5 (addressing UPL); see also N.C. Op. 2005-10 (discussing UPL and other advertising concerns).

Colo. RPC 7.3(a) provides that a lawyer “shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.” Given the nature of unbundled legal services, it is difficult to imagine that the lawyer’s “significant motive for” the contact would be “the lawyer’s pecuniary gain,” but a lawyer who provides, or intends to provide, unbundled services to clients and communicates those facts to prospective clients should take care to ensure compliance with Colo. RPC 7.3(a)-(c).

Finally, in any context, including the provision of unbundled legal services, a lawyer must ensure that he or she does not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Colo. RPC 8.4(c).

VI. Dealing With an Opposing Party Who Uses Unbundled Legal Services

In certain cases, questions will arise as to the duties of a lawyer who knows that an opposing lawyer providing unbundled legal services is assisting the opposing party. See ABA Op. 472. These questions will most likely arise when an opposing lawyer providing unbundled legal services is assisting with drafting pleadings or other court documents for the opposing party. ABA Opinion 472 addresses the interplay between Model Rules 1.2(c), 4.2 (prohibiting a lawyer from communicating with a person represented by counsel), and 4.3 (governing a lawyer’s interactions with unrepresented persons). The opinion notes that the opposing lawyer providing limited scope legal services generally has no basis to object to communications between the client receiving those services and the lawyer on any matter outside the scope of the limited representation. The opinion recommends that, if asked by the lawyer, the opposing lawyer providing limited scope services should identify the issues on which he or she provided representation and on which the lawyer could not communicate directly with the client.

If the lawyer is told that the opposing lawyer initially providing unbundled legal services is now representing his or her client on all communications about a matter, the inquiring lawyer must comply with Colo. RPC 4.2 and communicate only with the opposing lawyer. See ABA Op. 472. However, under Colo. RPC 4.2, the lawyer may ask the court for permission to communicate directly with the client receiving unbundled services in defined areas outside the presence of the opposing lawyer providing those services. For example, during a hearing, issues may arise that the court asks the parties to address during a recess. If the court approves a lawyer’s direct communication with an opposing party receiving unbundled services, then the lawyer may do so, keeping in mind any limits that the court has put on this communication. See generally ABA Op. 472.

When a lawyer knows that the opposing lawyer is drafting pleadings or other court documents for an opposing party but the opposing lawyer is performing no other services for that party, the first lawyer does not have a duty to communicate with the opposing lawyer providing those unbundled services and instead may communicate directly with the client receiving the unbundled services. In this situation, the opposing lawyer’s assistance in drafting court documents is not considered representation in the matter as contemplated by Colo. RPC 4.2. See CRCP 11(b) and 311(b). Under comment [9A] of Colo. RPC 4.2, a pro se party to whom limited representation has been provided in accordance with CRCP 11(b) or CRCP 311(b) and Colo. RPC 1.2 is considered to be unrepresented for purposes of Colo. RPC 4.2, unless the lawyer has knowledge to the contrary.10 Nevertheless, while a lawyer is providing ghostwriting services, an attorney-client relationship undoubtedly exists. However, principles of substantive law, not the Colorado Rules of Professional Conduct, “determine whether a client-lawyer relationship exists.” See Colo. RPC, Preamble and Scope, ¶ [17]; People v. Gabriesheski, 262 P.3d 653, 658 (Colo. 2011).

Therefore, in responding to motions filed by a party who is assisted, but not represented, by a ghostwriting, opposing lawyer, the lawyer may respond directly to the opposing party receiving unbundled services both formally and informally. The lawyer may confer about motions with the party receiving unbundled services and may serve motions and pleadings on that party without communicating with the ghostwriting, opposing lawyer. Until the lawyer has information that the party receiving unbundled services is being represented in the matter by the opposing lawyer who previously was only ghostwriting pleadings, the lawyer does not need to comply with Colo. RPC 4.2.

A lawyer also may provide unbundled services in negotiations or mediation. When a lawyer knows that a party is represented by an opposing lawyer providing unbundled services in settlement negotiations or mediation, then, pursuant to Colo. RPC 4.2, the lawyer should communicate only with the opposing lawyer providing unbundled services, and not the client, about settlement or mediation issues. If the case does not settle or resolve, and the lawyer has no reason to believe the representation by the opposing lawyer is continuing, then the lawyer may deal directly with the party on other issues. Further, if the lawyer has questions about whether he or she can communicate directly with the party who received unbundled services in the context of mediation or settlement negotiation, the lawyer should seek clarification or, if necessary, permission from the opposing lawyer who provided the unbundled services to communicate directly with that lawyer’s client.

In most circumstances, a lawyer whose client is adverse to a party using the services of an opposing lawyer providing unbundled services will need to follow Colo. RPC 4.3, which governs dealing with an unrepresented person. The lawyer needs to be careful not to give legal advice to the party receiving unbundled services, and to make certain, if it is not apparent, that that party understands the lawyer’s role in the matter.

VII. Fairness to Opposing Parties

Issues in ensuring fairness to opposing parties may arise in domestic relations cases, especially if both parties request assistance from one attorney. A lawyer should not mediate a divorce agreement between unrepresented parties and also prepare a proposed judgment of dissolution of marriage, a marriage separation agreement, or a joint parenting agreement. When a lawyer drafts these formal documents after mediating between the adverse parties, the lawyer goes beyond the role of mediator and takes on the role of representing both parties, which creates a nonwaivable conflict of interest. See Ill. State Bar Ass’n Op. 04-03 (2004). Under Colo. RPC 1.7(b), a lawyer cannot represent a client if that representation would be materially limited by the representation of another client. In the situation explained here, the mediating lawyer who prepares official documents would be effectively representing two adverse parties in one proceeding. See CBA Formal Op. 47, “Attorney Representation in Dissolution of Marriage” (1972, Addendum 1995) (“[C]onflicting interests will nearly always exist in dissolution of marriage cases, whether or not one or both clients know or agree that their interests are conflicting[.]”). Alternatively, the mediating lawyer can help the parties draft an informal agreement or a memorandum of understanding and then recommend that each party obtain independent and separate legal counsel to draft the final documents for the court.

During a limited scope representation, the lawyer should advise the client to decide whether the client wants legal representation at settlement. Then, in fairness to opposing counsel, the lawyer should inform opposing counsel whether opposing counsel should or can communicate with the individual. See D.C. Ethics Opinion 330 (2005). On the other hand, if the lawyer believes that the client will not be prepared to negotiate alone or without having to consult with the lawyer, the lawyer may recommend that the client retain the lawyer for settlement negotiations to avoid unreasonable delay. See State Bar of Ariz. Ethics Op. 06-03, “Limited Scope Representation; Confidentiality; Coaching; Ghost Writing” (2006).

Notes

1. See “Cases and Parties without Attorney Representation in Civil Cases,” Fiscal Year 2015, at 2, www.courts.state.co.us/Administration/Unit.cfm?Unit=annrep.

2. See Forrest S. Mosten, “Unbundling of Legal Services and the Family Lawyer,” 28 Fam. L.Q. 421 (1994). Much has been written about unbundling in Colorado. See Molly M. Jennings and D. James Greiner, “The Evolution of Unbundling in Litigation Matters: Three Case Studies and a Literature Review,” 89 Denver U. L. Rev. 825 (2012); Adam J. Espinosa and Daniel M. Taubman, “Limited Scope Representation Under the Proposed Amendment to C.R.C.P. 121, § 1-1,” 40 The Colorado Lawyer 89 (Nov. 2011); Adam J. Espinosa, “Ethical Considerations When Providing Unbundled Legal Services,” 40 The Colorado Lawyer 75 (2011); Raymond P. Micklewright, “Discrete Task Representation a/k/a Unbundled Legal Services,” 29 The Colorado Lawyer 5 (Jan. 2000).

3. Mosten, supra note 2 at 423.

4. ABA Standing Comm. on Delivery of Legal Services, Pro Se/Unbundling Resource Center, Ethics Opinions, apps.americanbar.org/legal
services/delivery/delunbundethics.html.

5. See Forrest Mosten, “Unbundling Legal Services in 2014, Recommendations for the Courts,” 53 Judges’ Journal No. 1, at 10, 11 (2014).

6. Limited legal representation also may arise where the lawyer represents a client in the insurance context through agreement with the insurance provider. This opinion is not intended to provide an in-depth analysis regarding ethical issues involved in insurance-defense representation or the nuances of the tripartite relationship, which are addressed in the Committee’s Formal Opinion 91, “Ethical Duties of Attorney Selected by Insurer to Represent Its Insured,” (1993, Addendum 2013).

7. As noted, some ethics committees have opined that it is permissible under their rules of professional conduct to provide limited representation and ghostwrite pleadings or court filings. See Alaska Bar Ass’n Ethics Comm., Op. 93-1, “Preparation of a Client’s Legal Pleadings in a Civil Action Without Filing an Entry of Appearance” (1993); L.A. Cty. Bar Ass’s Prof. Resp. & Ethics Comm., Formal Op. 502, “Lawyers’ Duties When Preparing Pleadings or Negotiating Settlement for in Pro Per Litigant” (1999) (L.A. Cty. Op. 502); L.A. Cty. Bar Ass’n Prof’l Resp. & Ethics Comm., Formal Op. 483 (1995); State Bar of Mich. Standing Comm. on Prof. & Jud. Ethics, Op. RI-347 (2010) (“Unless there is an affirmative misrepresentation that a pro se litigant has not been assisted by a lawyer, assistance by a lawyer need not be disclosed to the tribunal under the Michigan Rules of Professional Conduct.”). The ABA Standing Committee on Ethics and Professional Responsibility and the clear majority opinion among state and local bar ethics committees require some disclosure to the court when the attorney provides assistance to the client in some way that is not complete representation. See ABA Standing Comm. on Ethics & Prof’l Resp., Op. 07-446, “Undisclosed Legal Assistance to Pro Se Litigants” (2007); Conn. Bar Ass’n Comm. on Prof’l Ethics, Op. 98-5, “Duties to the Court Owed by a Lawyer Assisting a Pro Se Litigant” (1998); Del. State Bar Ass’n Comm. on Prof’l Ethics, Op. 1994-2 (1994); Fla. State Bar Ass’n Comm. on Prof’l Ethics, Op. 79-7 (Reconsideration) (2000); Ky. Bar Ass’n, Op. E-343 (1991); Mass. Bar Ass’n Comm. on Prof’l Ethics, Op. 98-1 (1998); N.H. Bar Ass’n Ethics Comm., “Unbundled Services—Assisting the Pro Se Litigant” (May 12, 1999); N.Y. Cty. Lawyers Ass’n Comm. on Prof’l Ethics, Op. 742, at 1 (2010); Tenn. Bd. of Prof. Resp. Formal Ethics Op. 2007-F-153, “Ghost Writing for Pro Se Litigant” (2007); Utah State Bar Ethics Advisory Comm., Op. 74 (1981); Va. State Bar Standing Comm. on Legal Ethics, Op. 1127, “Attorney-Client Relationship—Pro Se Litigant: Rendering Legal Assistance” (1988).

8. See State Bar of Ariz., Ethics Op. 05-06 “Limited Scope Representation; Candor to the Tribunal; Fees” (2005), for a well-written, detailed discussion of the candor concerns. See also Part IV infra.

9. See CBA Formal Op. 123, “Candor to the Tribunal and Remedial Measures in Civil Proceedings” (2011); see also Kan. Bar Assn. Ethics Advisory Comm., Op. 09-01 (2009).

10. See Ore. State Bar Formal Ethics Op. 2011-183, “Scope of Representation; Limiting the Scope” (2011); L.A. Cty. Op. 502; Wash. D.C. Bar Ass’n Ethics Op. 330, “Unbundling Legal Services” (2005). Florida Rule of Professional Conduct 4-4.2 (b) covers this issue explicitly: “An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule Regulating The Florida Bar 4-1.2 is considered to be unrepresented for purposes of this rule unless the opposing lawyer knows of, or has been provided with, a written notice of appearance under which, or a written notice of the time period during which, the opposing lawyer is to communicate with the limited representation lawyer as to the subject matter within the limited scope of the representation.”