|The Colorado Lawyer|
Vol. 40, No. 11 [Page 89]
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Access to Justice
Limited Scope Representation Under the Proposed Amendment to C.R.C.P. 121, § 1-1
by Adam J. Espinosa, Daniel M. Taubman
About the Authors
Adam J. Espinosa is an Assistant Regulation Counsel for the Colorado Supreme Court’s Office of Attorney Regulation—(303) 866-6478, firstname.lastname@example.org. Daniel M. Taubman is a judge on the Colorado Court of Appeals. He has been on the bench since 1993—(303) 837-3719, email@example.com.
An article in the September 2011 issue of The Colorado Lawyer1 addressed the need for limited representation of clients in Colorado courts and the ethical considerations when providing "unbundled legal services." Unbundled legal services, a term increasingly known as limited scope representation, means an attorney is providing less than the full scope of legal services to a client during the course of the representation. C.R.C.P. 11(b) and Colo. RPC 1.2(c) expressly permit limited scope representation. This article addresses practical considerations for attorneys providing limited scope representation related to the Colorado Supreme Court’s proposed amendment to C.R.C.P. 121, § 1-1.
This summer, the Colorado Supreme Court proposed an amendment to C.R.C.P. 121, § 1-1, that would allow for automatic withdrawal for attorneys providing limited scope representation to clients.2 The proposed amendment would add a new paragraph five to C.R.C.P. 121, § 1-1, and would read as follows:
5. Notice of Limited Representation Appearance and Withdrawal as Attorney for Pro Se Party.
In accordance with C.R.C.P. 11(b), an attorney may undertake to provide limited representation to a pro se party involved in a court proceeding. Upon the request of and with the consent of a pro se party, an attorney may make a limited appearance for the pro se party in one or more specified proceedings, if the attorney files and serves with the court and the other parties and attorneys (if any) a notice of the limited appearance prior to or simultaneous with the proceeding(s) for which the attorney appears. At the conclusion of such proceeding(s) the attorney’s role terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance. Service on an attorney who makes a limited appearance for a party shall be valid only in connection with the specific proceeding(s) for which the attorney appears.
* On October 20, 2011, effective immediately, the Colorado Supreme Court adopted the proposed rule with only minor changes. The Supreme Court also adopted a Committee Comment explaining that the purpose of the new rule is to provide assurance to attorneys in both pro bono and fee cases that they can make a limited appearance in a case at the request of and with the consent of a pro se party, and then withdraw from the case on filing a notice of completion of the limited appearance, without leave of court.
Purpose of Amendment
The proposed amendment addresses concerns and perceptions that have limited some attorneys’ willingness to assist in pro bono or pro se matters. The primary concern is whether the court would allow them to withdraw from a case at the completion of the limited representation. This perception has restricted the effectiveness of the limited representation rules and has undermined the policy concerns addressed by those rules, as well as access to our courts and to our system of justice.
If adopted, the proposed amendment would ensure that attorneys would be permitted to withdraw from a case when they were engaged in limited scope representation. This would quell the concern attorneys may have about limited scope representation and would encourage more attorneys to assist in pro bono and pro se matters. Consequently, this would increase access to justice for Colorado citizens and improve the efficiency of our courts.
Although C.R.C.P. 11(b) and Colo. RPC 1.2(c) permit limited representation, neither addresses the ability of the attorney to withdraw when the limited representation is complete. Under the current rules, when an attorney files an entry of appearance, signs a pleading,3 or appears before a court on a matter,4 the attorney has entered a general appearance. The rules currently do not provide for a limited representation entry of appearance or withdrawal. If an attorney wishes to withdraw from an active case where there is no co-counsel or substitution of counsel, the attorney must file a motion to withdraw and serve it on the attorney’s client and the opposing party or his or her attorney.5 The client and the opposing party or his or her attorney have fifteen days to object to the attorney’s motion to withdraw.6 After the expiration of the fifteen-day objection period, the court has discretion to grant the attorney’s motion to withdraw.7
Under the proposed amendment to C.R.C.P. 121, § 1-1, an attorney may enter his or her appearance for a specific proceeding and then be permitted to withdraw without leave of the court after that specific proceeding is complete. For example, an attorney could represent a client on an emergency motion related to the children in a domestic relations case. If the attorney complied with the proposed amendment to the rule, he or she could appear at the hearing and withdraw automatically after the hearing was complete.
Withdrawal Rules in Other States
The Colorado Supreme Court’s proposed amendment is modeled on the rules of eleven states and a Massachusetts’ Supreme Judicial Court order, which permit lawyers to terminate their limited scope representation without leave of court.8 Some of these rules require that the notice of completion of limited services filed with the court include the name and address of the person who has been provided limited representation. The proposed Colorado rule does not require the provision of such information, presumably because it already will have been provided to the court.
In contrast, some states provide that an attorney’s limited appearance ends when the lawyer files a substitution of attorney notice (substituting the client) or a withdrawal of appearance notice. For example, Nevada requires that a copy of the limited service retainer agreement be attached to the notice and that copies of the notice be served on the client and on all parties or their lawyers.9 California requires that a lawyer move to withdraw from limited representation; in some cases, a hearing is required.10
Possible Issues and Proposed Solutions
If approved, the Colorado Supreme Court’s proposed rule will present three important considerations for practitioners. These issues are discussed below.
Service of Process
In the event of limited scope representation, opposing attorneys in litigation must determine on whom to serve process or other court papers. If an attorney has entered an appearance at the beginning of a case for a limited purpose—such as representing a client in a motion for temporary orders in a dissolution of marriage case, or representing a client in connection with a motion to dismiss—the opposing party must serve papers on the attorney providing limited representation with respect to that specific proceeding. However, if unrelated proceedings occur simultaneously, the opposing attorney must send pleadings related to those issues directly to the pro se litigant. In the event that the opposing party’s attorney is unsure whom to serve, he or she should contact the limited scope representation attorney for clarification.
Communication With Attorney or Pro Se Party
The opposing attorney may face a similar question as to whom to contact regarding communications, such as scheduling court hearings or settlement negotiations, because Colo. RPC 4.2 prohibits a lawyer from communicating with a person the lawyer knows to be represented by another lawyer.11 As is the case with respect to service of process or other court papers, the opposing attorney should communicate directly with the limited representation attorney with respect to the specific limited representation; however, the opposing attorney should communicate with the pro se party with respect to other proceedings or issues. When unsure how to proceed, the opposing attorney should contact the limited representation attorney for clarification or confirmation.
Under Colo. RPC 1.5(b), when a lawyer has not regularly represented a client, the basis or rate of fee and expenses must be communicated to the client in writing before or within a reasonable time after representation begins. This provision applies to a limited-services agreement. Thus, a retainer agreement should include the basis and rate of the attorney fee, as well as describe the services for which the fee is being charged.
Although not required by Colo. RPC 1.5, the lawyer providing limited services should define the scope of limited representation in the retainer agreement.12 As noted, a lawyer may provide limited scope representation pursuant to Colo. RPC 1.2(c), as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b). Additionally, the lawyer may wish to include in the retainer agreement a discussion of services not provided pursuant to a limited representation agreement, as well as address the inherent risks and benefits of limited representation.
The proposed changes to C.R.C.P. 121, § 1-1(5), are intended to make attorneys more comfortable providing limited scope representation to clients. Attorneys engaged in limited representation will have an unqualified right to withdraw from the representation at the completion of a limited proceeding. If the rule modification increases the number of attorneys providing limited representation, then pro se litigants, including many low-income litigants, will obtain greater access to justice. At the same time, courts will benefit from more efficient litigation.
1. Espinosa, "Ethical Considerations When Providing Unbundled Legal Services," 40 The Colorado Lawyer 75 (Sept. 2011), available at www.cobar.org/tcl/tcl_articles.cfm?articleid=7208.
2. On June 29, 2011, the Colorado Supreme Court issued a Notice of Proposed Rule and Request for Public Written Comment. A copy of the proposed rule can be found at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm.
3. See C.R.C.P. 121, § 1-1(1), Entry of Appearance.
4. Limited representation under C.R.C.P. 11(b) shall not constitute an entry of appearance by an attorney; however, if the attorney appears with the pro se party at any proceeding before the court, it will constitute an entry of appearance pursuant to C.R.C.P. 121, § 1-1.
5. See C.R.C.P. 121, § 1-1(2)(b), Withdrawal From an Active Case.
6. See C.R.C.P. 121, § 1-1(2)(b)(IV), Withdrawal From an Active Case.
7. See supra note 5.
8. Alaska R.C.P. 81(e)(1)(D); Fla. Family Law Rules of Procedure 12.040(e); Iowa R.C.P. 1.404(4); Mass. Sup.Jud.Ct. Order in re: Limited Assistance Rep. ¶ 2 (eff. May 1, 2009); Mo. R.C.P. 55.03(b), Mo. Rule 4-1.16(c); Mont. R.C.P. 4.3 (eff. Oct. 1, 2011); Neb. RPC 3-501.2(e); N.H. R.C.P. 17(f); N.M. R.C.P. 1.089.C; N.M. Magis.Ct.R. 2-108 and N.M. Met.Ct.R. 3-108; Utah R.C.P. 74(b); Wash. Rules CR 70.1(b) Family Law, and CRLJ 70.1(b); Wyo. Unif. Dist.Ct.R. 102(c).
9. See Nev. Rule of Practice, 8th Jud. Dist. 5.28(b).
10. See Cal. Rules of Court 5.71 and 3.36.
11. Colo. RPC 4.2 cmt.  provides that a pro se litigant receiving limited representation is considered to be unrepresented for purposes of this rule unless the lawyer has knowledge to the contrary.
12. Mo. RPC 1.2, cmt., contains a model retainer agreement entitled Notice and Consent to Limited Representation, to be signed by the limited representation attorney and the client. See also N.H. RPC 1.2(g) (same); Wyo. RPC 1.2 App. 1 (same).
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