Every year or two since 2004, some committee or task force of Connecticut lawyers has been studying the merits and practicality of what used to be called unbundled legal services, and now is called limited scope representation.
As more and more litigants appear in court without lawyers, the concept of allowing clients to hire attorneys to handle only certain parts of a case, but not the entire case, has become a reality in 44 states nationwide.
Last month, the Connecticut Bar Association’s House of Delegates approved a measure that would change the Connecticut Practice Book and Rules of Professional Conduct to allow for limited scope representation in the state. But last week, on Nov. 19, the plan may have run into an insurmountable speed bump of skepticism.
The Judicial Branch’s Rules Committee tabled any action on the eight pages of rule revisions, pending further study. Specifically, the committee wants all the state’s chief administrative judges have a chance to weigh in.
The proposed rules would allow an attorney to handle a portion of a case and then file a certificate of completion with the court “which will serve to terminate the lawyer’s obligation to the client in the matter.”
The proposal calls for the lawyer to file the certificate within 10 days of completing the task; the client would then have 14 days to object to the lawyer’s withdrawal. Superior Court Judge Jon Alander took issue with this approach. “It appears that the client can object if the client deems the attorney has not completed his representation. It doesn’t give the judge the discretion. That troubles me,” he added, “because it puts the interest of the lawyer above the interests of the client.”
Superior Court Judge Elliot Prescott, another Rules Committee member, expressed what he called a “macro” concern. A three-page letter from Chief Court Administrator Barbara Quinn and the eight pages of proposed rule revisions left him hungry for more detail and context.
Quinn’s letter detailed the amount of study that limited scope representation has received. It listed the work of the 2004 committee, headed by former CBA president Norman Janes, which concluded that allowing lawyers to contract for discrete pieces of a legal matter would result in fewer clients proceeding into court without a lawyer, and increase work for attorneys. That committee’s work ended with a call for further study “to address potential ethical issues” it raised, Quinn noted.
The 2006 CBA Task Force on the Future of the Legal Profession also recommended limited scope representation as one potential solution to “the pro se problem” that slows some court dockets to a crawl.
In a survey, CBA members endorsed the concept, but it again foundered on ethics and legal issues. In 2008, Chief Justice Chase T. Rogers’ strategic plan for the Judicial Branch included a 26-member committee on self-represented parties, which re-invigorated the debate. Hartford Superior Court Judge Raymond Norko took a leadership role in that committee, meeting with local bar groups to discuss concerns and reservations.
A national expert on limited scope representation, N. Sue Talia, joined Norko and others in a 2011 symposium at Quinnipiac University School of Law. Even at this stage, Quinn noted in her letter, “there was still widely held mistrust and anxiety about just what this discrete practice meant for the future of Connecticut’s legal profession.”
Quinn, who did not attend the Rules Committee meeting, endorsed the heavily-revised proposed rules changes.
Currently, opposing counsel are barred from directly speaking with a party who is represented by a lawyer. But under the proposed rule, the opposing lawyer may directly communicate with a pro se “about matters the lawyer reasonably believes are outside the scope of the limited representation without consulting with the party’s limited appearance lawyer.”
This troubled Judge Alander, who noted that the general rule is that a lawyer can’t talk to a represented party “about anything” without the assent of opposing counsel.
Judge Prescott raised a concern about criminal representation. What if a client, facing five criminal counts, contracts for representation on just three of the charges? Who can the prosecutor negotiate with?
Norko, in an interview the day after the hearing, said the hypothetical used by Judge Prescott is not applicable “because you can not use limited scope representation in criminal representation.” Family law is a much better field for it, Norko said. For example, a lawyer can be contracted to handle a discreet hearing to modify terms of visitation, custody or support, and then withdraw once that issue is settled.
Norko said that over the 2 1/2 years he spent traveling around the state listening to different bar groups, “lawyers frequently raised the concern that judges would not let them out of cases if they filed a partial appearance.” That’s the reason for proposing the Practice Book mechanism of a certificate of completion, he said, “to assuage that feeling.”
Conversely, he said, “the judges felt there may be some loss of their power based on lawyers just the filling out that certificate” to end the representation.
Norko said that another reason that lawyers’ services need to be re-packaged for a changing client base is the Internet, and the advent of Web-based legal advice outlets. “This is a 21st-century issue,”said Norko, “and electronic law firms are eating up the private practice of law.”
In answer to the committee’s immediate requests, Norko promptly forwarded the Rules Committee copies of limited scope representation rules used in Massachusetts, the reports of the two CBA task forces, the Quinnipiac symposium materials, and a CBA legal ethics report on the topic. He said he hoped that in the next Rules Committee meeting in December, “that there will be different positions taken based on more knowledge.”
In a related matter, the committee discussed a suggestion raised by Bantam Superior Court Judge Richard M. Marano to consider a mechanism to allow lawyers to enter a criminal defense appearance limited to the G.A. courts. If the matter is transferred to Part A as a major crime, the attorney making a limited appearance in this manner would not have to obtain a judge’s consent to withdraw. That matter was tabled as well.
Draft rules proposals that are approved by the Rules Committee will go before the annual meeting of Connecticut’s judges next June, and if approved, will be included in the compilation of court rules known as the Practice Book. •