Limited Assistance Representation In The Probate And Family Court

Issue Vol. 9 No. 1 January 2007 By John G. Dugan

Litigants in the Suffolk and Hampden Probate & Family courts will be able to retain attorneys for “limited-scope representation” under a plan being launched in Boston and Springfield on Nov. 1…The chief justice [Margaret H. Marshall] trumpeted the unbundling plan as a “win-win” – both for clients of modest means who might otherwise not be able to afford the fees of attorneys in protracted cases and for lawyers who might have had to forego compensation in any amount by clients choosing to represent themselves... Overall, there is little doubt that this is a program worth trying.

Excerpt from Massachusetts Lawyers Weekly editorial, 35 MLW 526, Oct. 23, 2006.

The volume of pro se appearances in domestic relations matters has exploded in recent years, often resulting in ineffective pleadings and delays in providing financial, protective and parental scheduling orders for the parties. Many states have implemented new programs to address the reality of self-represented litigants, case backlogs and overcrowded courtrooms. In Massachusetts, a committee led by Justice Elaine Moriarty and, more recently, the Supreme Judicial Court’s Steering Committee on Self-Represented Litigants, studied and reported on a number of possible solutions. One of those solutions is limited assistance representation (“LAR”), which allows clients to engage an attorney for only a portion of a legal matter, making representation more affordable and allowing the party to appear pro se in the less complex aspects of the case.

Pilot Programs

The SJC has issued a Standing Order that creates LAR pilot programs in the Suffolk and Hampden Divisions of the Probate and Family Court. For full text of the Standing Order, see 35MLW 473, Oct. 23, 2006. Judges, registers and other court personnel have received education, forms and training on limited representation. Many private and public sector attorneys have attended training sessions, which are required for participation in the programs. Additional training sessions will be scheduled. An advisory committee will monitor and evaluate the pilots, measure clients’ use of LAR and address participants’ concerns and suggestions.

The Standing Order permits a participating attorney to file a Notice of Limited Appearance in any probate or domestic relations matter in the Hampden or Suffolk Division. The notice must identify precisely the events and/or issues for which the attorney will appear. Upon completion of the limited representation, the attorney must file a Notice of Withdrawal. The important distinction is that the operative instrument is a notice, not a motion to withdraw. The Notice of Withdrawal terminates the attorney’s appearance, and is binding on the court and opposing party/counsel. Copies of the Notices of Appearance and Withdrawal must be properly and timely served upon the client and opposing party/counsel. When a party is represented in only limited portions of a case, service of pleadings by the opponent must be made upon the party and upon counsel for those matters included in the limited appearance. For matters not included in the limited appearance, service is made only on the pro se party.

The Standing Order specifically allows “ghostwriting,” which is the practice of assisting a client in preparing a pleading, motion or other document to be filed in court. In that case, the attorney must insert the notation “prepared with assistance of counsel” on the ghostwritten instrument. The attorney is not identified, and the required notation does not constitute an appearance by the attorney.

Practice, Ethical Standards and Professional Liability Insurance

The standards of competence required in limited and full representation are identical: The lawyer will be held to the prevailing standard of practice of an attorney reasonably qualified in the particular field of practice.

Similarly, Rules of Professional Conduct apply equally to limited and full representation: The attorney must practice with requisite competence, promptness and skill; keep the client reasonably and timely informed of developments; avoid any conflict of interest; advocate zealously; and maintain confidentiality.

Limited representation has been allowed and actively practiced in non-litigation circumstances in Massachusetts for many years. See Massachusetts Rules of Professional Conduct, Rule 1.2. For example, a lawyer may consult with a client about a pending proceeding or review a mediated agreement and charge a fee for the consultation without further representing the client in the proceeding. Professional liability insurance provides coverage for lawyers in limited scope tasks to the same extent as in full representation.

In summary, attorneys engaging in limited or full representation are governed by and subject to the same standards of competence, liability coverage and professional conduct.

Potential Pitfalls and Best Practices

The Standing Order provides: “A qualified attorney may limit the scope of his or her representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The “reasonable” standard means that the attorney must assess the client’s situation and determine whether limited representation is appropriate in the particular circumstances. The “informed consent” standard means that the attorney must ensure that the client understands the proceeding as a whole, what services the attorney will and will not do, and which portions of the case will be the sole responsibility of the client. There are three steps in this process:

1. The limitation must be reasonable. For example, a client may want an attorney to prepare, file and serve a complaint for divorce and appear only on motions for temporary orders. That should be a workable and reasonable arrangement. It may be unreasonable for an attorney to appear only to make oral argument on a motion for summary judgment prepared by the client on custody or other complex issues. In that case, the attorney could be unreasonably restricted by pleadings filed by the client that may not correctly identify or address the issues. The attorney must assess the client’s case and proposed limitations on representation, and decide whether limited representation is appropriate under the circumstances.

2. There is a requirement of “informed consent.” The attorney must define the overall procedural and substantive aspects of the case and identify those tasks that the attorney will and will not undertake. The LAR training materials contain flow charts, checklists, sample legal services agreements and closing letters that explain allocation of tasks in detail. The materials will be helpful for the attorney to ensure that the client and attorney have a mutual and consistent understanding about division of responsibilities.

3. The attorney should document the nature and scope of limited representation. The checklists, legal services agreement, Notice of Limited Appearance and Notice of Withdrawal should provide a clear definition of what the attorney will and will not do in the pending case. After completion of representation, the attorney should send a closing letter to the client to emphasize that representation has terminated. Good documentation will eliminate or minimize misunderstandings between attorney and client.

Practice Tips

  • Attorneys who ghostwrite pleadings should open a file for each client and keep copies of all pleadings as drafted by the attorney. Ideally, the client should sign the file copies, or the attorney should file the original pleadings in court, to ensure that no changes are inserted by the client that would later be attributed to the drafting attorney.
  • If a client wishes to extend or revise the scope of limited representation while the case is in progress, the attorney should file a Notice of Withdrawal as contemplated by the original limited appearance, execute an amended legal services agreement and file a new Notice of Limited Representation that reflects the amended agreement. There is no restriction on the number of limited appearances that an attorney may file.
  • Do not ask the court for approval or input regarding withdrawal. When the time has come for termination of representation as defined by the limited appearance, file a Notice of Withdrawal and exit the case. The court will not intervene in attorney-client disputes about limited representation.
  • The advisory committee is assembling a list of mentor attorneys who will be available by voice or e-mail to discuss and advise on questions about limited representation. If there is some doubt about any aspect of limited representation, contact a mentor.   
  • Both pilot courts have designated a liaison to coordinate LAR proceedings in the respective courts. The Suffolk liaison is Anthony Carnevale, administrative deputy assistant register, at (617) 788-8353. The Hampden liaison is Lori A. Landers, family law facilitator, at (413) 735-6043. The liaisons may be contacted for information on training sessions, pilot participation and LAR forms.

Limited representation is working well in many states. It makes legal representation available to more people, allows legal services providers to represent more clients, and results in more professionally prepared pleadings in the courts. LAR can be a highly efficient part of any attorney’s practice. We hope and expect that the pilots will succeed and serve as models for LAR throughout Massachusetts