Limited assistance representation pilot program receives high marks, expands

Issue January 2008 By Andrea R. Barter, Esq.

Just over one year ago, Hampden and Suffolk Probate and Family Courts launched a pilot program to allow pro se litigants access to attorneys on a limited assistance representation basis. The goal of the program was to facilitate legal representation, thereby benefiting both self-represented litigants and the court system. With less than six months remaining, the pilot program appears to be well received and the LAR movement is gaining momentum. In fact, starting this month, the Massachusetts Bar Association is offering Limited Assistance Representation referrals through the Lawyer Referral Service program.

“The whole idea of limited assistance representation is to give clients more power, more control over their spending for legal services. But it also works well for the attorneys,” said Wayland attorney Susan Klueppel. “Some people don’t understand the value of having legal representation. But if they see an attorney can adequately represent them, by doing their homework, knowing the law, having the experience of knowing what to say to a judge, you convince them you really are worth your services.”

Pilot program

An attorney who has gone through training and been qualified to participate in the pilot program and who has agreed with a client to appear in court on a limited representation basis can file a Notice of Limited Appearance. The notice must identify the court event to which the limited appearance pertains, and, if the appearance does not extend to all issues to be considered at that event, it must identify the discrete issues within the event that are covered by the appearance.

When the representation that is within the scope of the limited appearance is completed, the attorney files a Notice of Withdrawal — again in a prescribed form. The lawyer can file more than one limited appearance and withdrawal in the same case. Participating attorneys can assist a client in preparing a pleading, motion or other document to be signed and filed in court by the client — a practice known informally as “ghostwriting.” The attorney must insert the notation “prepared with the assistance of counsel” on the document, but is not required to sign it. Assisting in this way does not constitute an appearance by the attorney.

The court never sees the terms of the written LAR agreement, nor can a judge keep an attorney in a case if the client and the attorney have agreed the attorney will appear only for a limited purpose.

Training requirements

Although the pilot program is more than halfway through its tenure, Jayne Tyrrell, director for the Massachusetts IOLTA Commission, said that she knows private attorneys are still seeking to get involved.

Training and certification are necessary to participate in LAR. The training teaches attorneys who wish to practice under the LAR system how to make it work safely for them. Tyrrell, who was instrumental in creating the instructional materials, said attorneys need to learn the ethical issues involved, the standard of care, common pitfalls and how to avoid them, and how to set up office procedures to work smoothly and profitably.

In addition, there are also retainer agreements, instructions and checklists, and intake and diagnostic questionnaires to help identify which clients lend themselves to LAR. Training also involves role-playing between opposing counsel, judges and attorneys, as well as intake interviews between clients and attorneys.

“It’s one thing when you talk to someone about the outline of people who would not be good clients for LAR and they write down the three or four characteristics. But when you role-play it, it becomes really clear,” said Tyrrell. “I’m prejudiced, but I think the training materials are excellent.”

Strengths and weaknesses become apparent

At the outset of the program, advocates of limited assistance representation promised benefits for everyone involved: Attorneys would avoid being drawn into lengthy, complex cases or could assist more clients by handling discreet parts of a case; Legal Services could use LAR to leverage resources; unrepresented litigants would avoid being caught in the complexities of the courthouse; and courts would run more smoothly with better-informed litigants. Critics made dire predictions of a detrimental impact on family law practices and confusion when communicating with a pro se litigant who retained an LAR attorney.

Although a complete report on the progress of the program is not yet available, Sandra Lundy, Supreme Judicial Court senior administrative attorney, says LAR has been a success. “I’ve seen a lot of enthusiasm for the program and I’m not sure you would have seen that same enthusiasm five or 10 years ago,” said Lundy.

An SJC survey of attorneys participating in LAR shows that litigants have been utilizing LAR for both in-court and out-of-court representation. Most often, clients sought the help of attorneys for counseling about strategy and drafting pleadings and affidavits. Coming in at a close second and third, litigants sought assistance with court appearances and counseling about procedural and substantive rules. Similarly, according to attorney responses, most felt LAR worked best with drafting pleadings and affidavits and court appearances.

Springfield attorney Joanna Cobleigh said limited assistance representation has worked well for her. LAR “has increased what I can do and what I’m willing to do,” she said. “The only problem I’ve had is someone wanted me to do it in Hampshire County and they don’t do LAR there!”

Lundy has found the level of enthusiasm and positive comments very gratifying. “It tells me that LAR has a place, it is a valuable service and people here are enthusiastic about it,” she said. “People who tried it liked it.”

But people who don’t know about LAR can’t try it. Lori A. Landers-Carvalho, family law facilitator for Hampden County, coordinates LAR proceedings in Hampden County; She believes the program is not advertised well enough to the general population, despite promotion of the service by judges, attorneys and court employees, along with readily available LAR pamphlets and lists of qualified LAR attorneys.

“We’re looking into it in Hampden County,” said Landers-Carvalho. “Part of the problem is we don’t have the budget for it, and you can’t advertise without money.”

Even for those litigants who are aware of LAR, it is not being used by litigants as often as Landers-Carvalho would like. “Hampden County is a low-income community… a lot of people we have can’t afford to hire an attorney, even on a limited basis,” she said.

That, in part, is why the pilot program has been extended to Norfolk County.

“We thought the different demographic in Norfolk would give us a better sense of who would be most likely to use LAR,” said Lundy. “Because the demographics are different, it gives us a chance to expand our understanding of how broad the program would be in its appeal. In Suffolk County, there are more people who qualify for legal assistance. We wanted to see what would be the case where more people were paying for their own legal assistance,” she explained.

Klueppel, who signed three new LAR clients within the first three months of the program’s extension to Norfolk County, admits that she “love[s] the concept, but I haven’t taken it for a full test run yet.”
Apparently unaware of LAR when they entered her office, all three clients readily embraced the idea after Klueppel explained that they could limit her services to a number of days or one event or one issue.

“It’s been a positive response in all three instances because they don’t have to give up a huge amount of money in a retainer up front. They can ‘test drive’ me, to see how I do at each event as we go,” said Klueppel.

“I don’t see any reason this shouldn’t be statewide,” she added. “It helps the client and helps the lawyer. It really works beautifully both ways. I’m very glad LAR came into being.”

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