|The Colorado Lawyer|
Vol. 40, No. 9 [Page 75]
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Access to Justice
Ethical Considerations When Providing Unbundled Legal Services
by Adam J. Espinosa
About the Author
Adam J. Espinosa is an Assistant Regulation Counsel for the Colorado Supreme Court’s Office of Attorney Regulation—(303) 866-6478, email@example.com. The author is grateful to the Access to Justice Commission, Justice Gregory J. Hobbs, Judge Daniel M. Taubman, and James C. Coyle for their assistance and input in the preparation of this article.
More than ten years ago, the Colorado Supreme Court recognized the need for limited representation of clients in Colorado courts. In an effort to address this need, the Colorado Supreme Court amended C.R.C.P. 11 and C.R.C.P. 311.1 Despite the amendment, many attorneys have been reluctant to engage in limited representation.2 This article addresses the need for limited representation of clients and the ethical considerations for attorneys providing unbundled legal services to clients in Colorado courts.
Unbundled Legal Services
When an attorney is said to be providing unbundled legal services, it means that he or she is providing the client only certain components of the full bundle of legal services during the course of the representation. Attorneys often refer to unbundled legal services as limited representation or discrete task representation, and use these terms interchangeably.
To understand the concept of unbundled legal services, it is important to know what typically is included in the full bundle of legal services. The full bundle of legal services generally includes: (1) gathering facts; (2) advising the client; (3) discovering facts of the opposing party; (4) researching the law; (5) drafting correspondence and documents; (6) negotiating; and (7) representing the client in court.3
In most traditional attorney–client relationships, the attorney and the client contract for the full bundle of services. Unbundled legal services afford the attorney and the client the flexibility of addressing their legal needs and financial limitations by contracting for something less than the full bundle of services.
Pro Se Representation Delays Access to Justice
The depressed economy that has plagued the United States over the last several years has resulted in less business growth, higher unemployment,4 and more foreclosures. In Colorado, for example, despite their financial problems—or perhaps because of them—more and more citizens are seeking relief in the courts. In fact, district court filings in Colorado courts have increased 25.53% from 2009 to 2010 and 52% from 2001 to 2010.5
Many Colorado citizens seeking relief in our courts are financially unable to hire a lawyer to represent them with their legal dispute. As a result, many citizens choose to represent themselves pro se in the Colorado courts. In 2010, 52% of all cases filed in Colorado courts involved pro se parties.6 Those percentages are even greater in district court civil cases (56%), domestic relations cases (60%), misdemeanor criminal cases (64%), juvenile relinquishment cases (65%), and adoptions (73%).7 Many individual jurisdictions reported even greater numbers of pro se parties navigating their court system.
The growing numbers of pro se parties in Colorado courts has caused practical problems for the judicial system and has delayed the resolution of cases. This is because pro se parties often have little or no experience in the law and are ill-equipped to navigate the complexities of our judicial system.
Creating Access to Justice
Through Unbundled Legal Services
Pro se parties, courts, and attorneys all benefit when attorneys provide unbundled legal services. The pro se parties benefit by gaining more informed access to the justice system and by getting some legal assistance with their disputes. The courts benefit from pro se parties who are better prepared to represent themselves in court. Attorneys benefit by establishing relationships with clients who otherwise would forego hiring an attorney.
Access to justice is the cornerstone of the legal profession and our justice system. Citizens must have access to our courts and to our system of justice to resolve disputes. Unbundled legal services provide another avenue, distinct from traditional representation, for citizens to gain access to justice and to resolve their disputes.
The Rules of Limited Representation
An attorney considering providing unbundled legal services to a pro se party must be familiar with C.R.C.P. 11(b)8 and Colo. RPC 1.2(c). These rules operate in tandem to lay the foundation for limited representation of a client, because the Rules of Professional Conduct apply even in situations where the attorney provides limited representation.
C.R.C.P. 11(b) states that:
[a]n attorney may undertake to provide limited representation in accordance with Colo. RPC 1.2(c) to a pro se party involved in a court proceeding.
Rule 11(b) also sets forth the parameters and requirements for the limited representation of a client by an attorney. Specifically, it allows attorneys to draft or prepare pleadings on behalf of pro se parties for filing with the court. This form of limited representation often is called "ghostwriting" and is permitted in Colorado state courts but not in Colorado federal courts.9
Ghostwriting pleadings in Colorado state courts on behalf of a pro se party does not constitute an entry of appearance by the attorney.10 However, Rule 11(b) requires the pro se party to identify the attorney who assisted the pro se party with preparing or drafting the pleading by including the attorney’s name, address, telephone number, and registration number on the pleading. This is not a requirement if the attorney is assisting the pro se party in filling out preprinted and electronically published forms issued by the Judicial Branch. In either instance described above, appearing on behalf of a pro se party at any proceeding before the court constitutes a general entry of appearance by the attorney on behalf of the pro se party.
Colo. RPC 1.2(c)
According to Colo. RPC 1.2(c):
A lawyer may limit the scope or objectives, or both, of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. A lawyer may provide limited representation to pro se parties as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b).
Rule 1.2(c) allows an attorney to provide limited representation or unbundled legal services on behalf of a client if (1) the limitation is reasonable, and (2) the client gives informed consent.
There is no hard-and-fast definition of what is "reasonable" when providing limited representation. A lawyer cannot limit the scope of his or her representation to avoid the obligation of providing competent representation11 or circumvent the consequences of his or her negligent action. The reasonableness of the limited representation involves a case-by-case analysis and requires a close look at the facts. However, it’s possible to imagine an instance where it would be unreasonable to assist a pro se party in a limited capacity. For example, an attorney could not limit the scope of representation in a criminal matter by defending only one of several charges for a client.12
According to Colo. RPC 1.0(e), "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.13
Rule 1.0(e) does not require the informed consent to be in writing; however, best practice dictates that it be in writing, with a copy of the consent form/agreement given to the client. This protects the client and the attorney from any future misunderstanding regarding the scope of the representation.
In addition to defining the limited scope of the representation to the client, the attorney should explain the services he or she will not be providing, the inherent risks of not providing those services, and the inherent risks the pro se party faces by proceeding in a legal matter without legal representation. For example, if an attorney is simply ghostwriting a motion on behalf of a pro se party, the attorney should explain to the pro se party that there is a risk that the pro se party may not be able to introduce facts or evidence due to a lack of understanding of the Colorado Rules of Evidence. This type of discussion enables the client to weigh the risks associated with a limited representation.
Attorneys should not be reluctant to engage in the practice of providing unbundled legal services to pro se parties. Unbundling legal services is permissible—even encouraged—and benefits the client, the attorney, and the courts. In today’s economy, this may be the only avenue for some parties to get the legal assistance they need, as well as the access to justice they deserve.
1. The Colorado Supreme Court amended and adopted C.R.C.P. 11 and C.R.C.P. 311 on June 17, 1999, effective July 1, 1999.
2. In response, the Colorado Supreme Court has proposed a change to C.R.C.P 121, § 1-1. This proposed change will be discussed in a future article in the The Colorado Lawyer.
3. Mosten, "Unbundling of Legal Services and the Family Lawyer," 28 Fam. L.Q. 421, 423 (1994).
4. The Colorado Department of Labor and Employment reported in February 2011 that unemployment in Colorado was at a record high of 9.3%. See www.colorado.gov/cdle.
5. Colorado State Court Administrator’s Office (SCAO), Colorado Judicial Branch Annual Statistical Report—Fiscal Year 2010, available at www.courts.state.co.us/Administration. The report showed an increase in district court case filings from 188,537 in 2009 to 236,671 in 2010, and from 155,220 in 2001 to 236,671 in 2010.
6. See the SCAO’s report for calendar year 2010 (on file with author). In calendar year 2010, there were 784,125 cases filed in all of Colorado’s courts. In 405,228 of those cases, no attorney had entered his or her appearance for either party.
7. See id. regarding cases where no attorney entered his or her appearance.
8. In addition to C.R.C.P. 11(b) and Colo. RPC 1.2(c), attorneys also should familiarize themselves with C.R.C.P. 311(b), which is the county court rule of civil procedure that mirrors C.R.C.P. 11(b).
9. In Johnson v. Board of County Commissioners for the County of Fremont, 868 F.Supp. 1226, 1232 (D.Colo. 1993), in an opinion written by Senior District Judge John Kane, the court disapproved of ghostwriting and put attorneys on notice that engaging in ghostwriting in federal court can subject the attorney to contempt of court.
10. C.R.C.P. 11(b) ("Limited representation of a pro se party under this Rule 11(b) shall not constitute an entry of appearance by the attorney for purposes of C.R.C.P. 121, section 1-1 or C.R.C.P. 5(b), and does not authorize or require the service of papers upon the attorney.").
11. Colo. RPC 1.1 ("Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."). See also Colo. RPC 1.1, cmt. .
12. See Colo. RPC 1.2, cmt. , for an example of an unreasonable limited representation. See also People v. Jerry Lee Stevens, O.P.D.J. (No. 10PDJ002, Oct. 7, 2010), where the respondent alleged he agreed to provide the defendant a "preliminary defense" against a sexual assault charge and then withdraw, leaving the defendant facing several other serious criminal charges, including habitual criminal charges. The respondent was suspended from the practice of law for this and other conduct for one year and one day.
13. Colo. RPC 1.0(e).
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