A duty to ask: Another of the unintended consequences of unbundling

Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued its latest ethics opinion, Formal Opinion 472, “Communication with Person Receiving Limited-Scope Legal Services.”  On the whole, it isn’t a bad opinion.  It is well-constructed, addresses multiple topics that seem ripe for discussion, and clearly is the product of a lot of thought and consideration.

The main topic it seeks to address involves a situation that doesn’t fit nicely into traditional models – the use of the authority under RPC 1.2(c) to provide limited scope services to a client to provide what are usually referred to as “unbundled” legal services and whether/when a lawyer on the other side can treat the litigant as unrepresented for purposes of RPC 4.3 versus when RPC 4.2 applies.

RPC 1.2(c) wasn’t originally a rule designed to necessarily encourage unbundling, especially not in the litigation context, but that is a place that it has gone.  As the ABA Formal Opinion explains:

Limited-scope representation may include assisting a litigant who is appearing before a tribunal pro se, by drafting or reviewing one or more documents to be submitted in the proceeding.  “This is a form of ‘unbundling’ of legal services, whereby a lawyer performs only specific, limited tasks instead of handling all aspects of a matter.”

In Tennessee, there was a proposal a few years ago that would have involved rule changes on the civil procedure side to try to address the reality of problems with limited scope representations in litigation proceedings.  Concerns were expressed that judges might not let lawyers withdraw in accordance with terms of a limited scope representation. If memory serves, the proposal would have required lawyers in such situations to file a notice of appearance that revealed that the representation essentially had an expiration date and then would have permitted the lawyer to file a notice of withdrawal that the court would have no discretion to overrule once complete.  There were voices in opposition to aspects of the proposed rule, ironically, to make the point that it would truly make recipients of such services into second class citizens as the party on the other side would be fully aware that they could likely paper to death the lawyer in the short term to levy pressure or could simply hunker down and wait the inevitable withdrawal.  It probably was a bad rule and ultimately was not adopted.

This ABA opinion probably will be viewed in the future as a bad opinion, and I already wish it hadn’t been issued in this form.  Usually an ethics opinion that exhorts the fact that the ethics rules are “rules of reason and must be construed and applied ‘with reference to the purposes of legal representation and the law itself,'” can be counted upon to reach a practical, well-measured result.

I have no doubt the authors believe they did so here, but they squarely put the onus on the attorney who is undertaking a traditional representation model and placing the burden there is the wrong outcome under the opinion’s own terms.

In addition to calling upon the exhortation from [14] Scope above, the opinion hangs its hat on being just a repetition of the warning in Comment [8] to RPC 4.2 that a lawyer cannot circumvent RPC 4.2’s prohibition by “closing eyes to the obvious.”  Yet, the framing doesn’t track that warning at all.

In describing circumstances it says are enough for knowledge of representation to be inferred, the opinion offers:

[W]hen a lawyer representing a client faces what appears to be a pro se opposing party who has filed a pleading that appears to have been prepared by a lawyer or when a lawyer representing a client in a transaction is negotiating an agreement with what appears to be a pro se person who presents an agreement or a counteroffer that appears to have been prepared by a lawyer.

How would proceeding on the basis that you don’t actually “know” that there is a lawyer involved behind-the-scenes in either scenario “closing eyes to the obvious?”

The only obvious thing is that the “eye of the beholder” will make all the difference.  Today, it’s already fairly easy for a person, without a law license, to use the internet to find forms and pleadings of all sorts from other cases and, with some modification, attempt to use them for their own purposes.  That’s true even if you don’t bring into the mix companies that offer such forms for a fee.  When is it going to appear there is a lawyer involved as opposed to when it is going to appear that someone is buying forms or cannibalizing materials from the internet?

If the endeavor of trying to reconcile this “gap” where RPC 1.2, 4.2, and 4.3 intersect was to be undertaken “with reference to the purposes of legal representation,” then (if you didn’t already figure this out) I think the answer should clearly have been different.

The purpose of permitting unbundling as a good thing is inherently the idea that some access to the assistance of a lawyer is better than no access.  Half a loaf and all that.  Thus, unbundling necessarily contemplates that the client will have to navigate certain aspects of the matter — including communicating with counsel for the other side — on their own.  So, why shouldn’t the onus be placed on the person receiving unbundled services (with the guidance of their limited scope lawyer to make a choice — either (a) get the benefit of counsel’s involvement on a behind-the-scenes basis in exchange for the burden of being fair game for direct communication; or (b) get the benefit of being shielded from direct communication with counsel for the opposing party in exchange for the burden that your lawyer must come forward, no matter how limited the scope, and communicate forthrightly about that involvement?