Patricia A. Wrona
CARPLS LEGAL AID
12/12/13
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FORMER Illinois Rule of Professional Conduct 1.2(c)
(pre-2010) provided that:
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“A lawyer may limit the objectives of the representation
if the client consents after disclosure.”
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40 other states have ethical rules that substantially
follow the ABA Model Rule 1.2(c) which permits
“limited scope representation.”
ABA Model Rule 1.2(c) provides:
“A lawyer may limit the scope of the representation if
the limitation is reasonable under the circumstances
and the client gives informed consent.”
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In 2010, Illinois in effect followed the ABA Model
rule.
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Now Illinois Rule of Professional Conduct 1.2(c)
provided that:
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“A lawyer may limit the scope of the representation if
the limitation is reasonable under the circumstances
and the client gives informed consent.”
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Comment (6):
“…may be limited by agreement with the client or by
terms under which the lawyer’s services are made
available to the client.” (ex. counsel provided by
insurance carrier).
“…maybe be appropriate because the client has limited
objectives to the representation.”
“…limitations may exclude actions that the client
thinks are too costly….”
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Comment 7:
“…if…the client’s objective is limited to securing
general information about the law the client needs in
order to handle a common and typically uncomplicated
legal problem, …the services may be limited to a brief
telephone consultation.”
“…would not be reasonable if the time allotted was not
sufficient to yield advice upon which the client could
rely.”
“…does not exempt a lawyer from the duty to provide
competent representation.”
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Offering limited scope legal services are often referred
to as “unbundling” of legal services—giving the client
only the service he wants/can afford.
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Generally unbundling means that a lawyer will provide
representation in only specific parts or tasks of a legal
matter, with the client self-representing in the other
aspects of the case.
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Business lawyers have been giving “just” advice, or
“just” reviewing contracts, or “just” drafting a form
contract for later use
Legal aid lawyers have been “just advising” indigent
pro se litigants for years
Anyone who has ever “just” given legal advice to a
client has provided an unbundled legal service
Taking on a matter for the purposes of settlement only
is another example
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Even the drafting of pleadings by an attorney for a
client to use pro se has been permissible, as long as the
client was fully informed of the consequences and the
lawyer took the steps to avoid any foreseeable
prejudice to the client.
--ISBA Advisory Opinion of Prof. Conduct 849 (1983)
(attorney may limit representation to drafting of
divorce pleadings for client).
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While the Rule 1.2 change gave more clarity to limited
representation, the other court rules did not provide the
additional court procedure by which to use Rule 1.2 (c)
effectively
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It particularly needed clarification/process in the
context of court litigation
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There are increasing numbers of pro se litigants in our
courts trying to do it “on their own”
The increasing need for more legal aid assistance but
decreasing supply of legal aid resources
Need for greater clarity in what was permitted (lawyers
are risk adverse)
Help the court burdened by so many pro se litigants
Need for increased business opportunities for lawyers
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To represent a client in a limited way in litigation, the
lawyer had to file an appearance, and then be permitted by
the court to withdraw
There was the very real possibility that the court would not
permit the attorney to withdraw
There was no assurance to the attorney or the client that the
limitation they had forged would be honored by the court
We all know horror stories of attorneys who have not been
permitted to withdraw from a matter, and were in
“involuntary servitude” to the client due to the court’s order
Some rule changes were needed to make this work
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Changes to the procedural rules on the filing of
appearances, and withdrawal of appearances, would be
needed to make Rule 1.2(c) really work in a litigation
context
The Lawyers’ Trust Fund, along with the Chicago Bar
Association, Illinois Judges Association, and the Illinois
State Bar Association formed a “Joint Task Force on
Limited Scope Legal Representation” to propose such rule
changes to the Illinois Supreme Court
To bring Illinois in line with 18 other states that have
enacted/adopted court and ethics rules to accommodate
limited scope representation.
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After consideration of the situation by the Illinois
Supreme Court, effective July 1, 2013, several rule
changes were made that set out the procedure for
limited representation appearances in the Illinois
courts.
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Just arguing a motion the client has drafted
Drafting a motion to be argued by the client
Just drafting pleadings (complaint/answer) for a client
to file pro se
Representation at a deposition
Representing the client for a difficult phase of a case
(ex. child custody proceedings, or discovery)
Representing the client for trial only
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(6) Limited Scope Appearance. An attorney may make
a limited scope appearance on behalf of a party to a
civil proceeding pursuant to Rule of Professional
Conduct 1.2(c) when the attorney has entered into a
written agreement with that party to provide limited
scope representation. The attorney shall file a Notice
of Limited Scope Appearance in the form attached to
this rule, identifying each aspect of the proceeding to
which the limited scope appearance pertains.
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An attorney may file a Notice of Limited Scope
Appearance more than once in a case. An attorney
must file a new Notice of Limited Scope Appearance
for any additional aspect of the proceeding in which the
attorney intends to appear. A party shall not be
required to pay more than one appearance fee in a case.
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Must file a Notice of Limited Scope Appearance
May file more than one notice of limited scope
appearance in a case
Party only pays one appearance fee in the case
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(7) Withdrawal Following Completion of Limited
Scope Representation. Upon completing the
representation specified in the Notice of Limited Scope
Appearance filed pursuant to paragraph (6), the
attorney shall withdraw by oral motion or written
notice as provided in parts (i)-(ii) of this paragraph. A
withdrawal for any reason other than the completion of
the representation shall be requested by motion under
paragraph c (2) and c (3) [by way of a motion to
withdraw].
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(i) If the attorney completes the representation at or before a court
hearing attended by the party the attorney represents, the attorney may
make an oral motion for withdrawal without prior notice to the party
the attorney represents or to other parties. The court must grant the
motion unless the party objects on the ground that the attorney has
not completed the representation. The order granting the withdrawal
may require the attorney to give written notice of the order to parties
who were neither present nor represented at the hearing. If the party
objects that the attorney has not completed the representation, the
court must hold an evidentiary hearing on the objection, either
immediately or on a specified later date. After hearing the evidence,
the court must grant the motion to withdraw unless the court
expressly finds that the attorney has not completed the representation
specified in the Notice of Limited Scope Appearance.
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(ii) An attorney also may withdraw by filing a Notice of Withdrawal of Limited Scope
Appearance in the form attached to this rule. The attorney must serve the Notice on
the party the attorney represents and must also serve it on other counsel of record and
other parties not represented by counsel, unless the court by order excuses service on
other counsel and other parties. The attorney must also serve the Notice on the judge
then presiding over the case. The attorney must file proof of service in compliance with
this paragraph. Within 21 days after the service of the Notice, the party may file an
Objection to Withdrawal of Limited Scope Appearance in the form attached to this rule.
The party must serve the Objection on the attorney and must also serve it on other
counsel of record and other parties not represented by counsel unless the court by order
excuses service on other counsel and other parties. If no timely Objection is filed, the
attorney’s limited scope appearance automatically terminates, without entry of a court
order when the 21-day period expires. If a timely Objection is filed, however, the
attorney must notice a hearing on the Objection. If the ground for the Objection is that
the attorney has not completed the representation specified in the Notice of Limited
Scope Appearance, the court must hold an evidentiary hearing. After the requisite
hearing, the court must enter an order allowing the attorney to withdraw unless the
court expressly finds that the attorney has not completed the representation specified in
the Notice of Limited Scope Appearance.
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An attorney making a limited scope appearance in a civil proceeding must first enter into a
written agreement with the party disclosing the limited nature of the representation.
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The limited appearance is then effected by using the form Notice of Limited Scope
Appearance appended to this Rule.
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Utilizing this standardized form promotes consistency in the filing of limited scope
appearances, makes the notices easily recognizable to judges and court personnel, and
helps ensure that the scope of the representation is identified with specificity.
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A party on whose behalf an attorney has filed a Notice of Limited Scope Appearance
remains responsible, either personally or through an attorney who represents the party, for all
matters not specifically identified in the Notice of Limited Scope Appearance.
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Paragraph (c)(6) does not restrict
(1) the number of limited scope appearances an attorney may make in a case
(2) the aspects of the case for which an attorney may file a limited scope appearance such as,
for example, specified court proceedings, depositions, or settlement negotiations, or
(3) the purposes for which an attorney may file a limited scope appearance.
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two alternative ways for an attorney to withdraw when the representation specified in the Notice of Limited Scope Appearance has been completed.
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The first method—an oral motion—can be used whenever the representation is completed at or before a hearing attended by the party the attorney
represents. Prior notice of such a hearing is not required. The attorney should use this method whenever possible, because its use ensures that
withdrawal occurs as soon as possible and that the court knows of the withdrawal.
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The second method—filing a Notice of Withdrawal of Limited Scope Appearance—enables the attorney to withdraw easily in other situations,
without having to make a court appearance, except when there is a genuine dispute about the attorney’s completion of the representation. The Notice
must be served on the party represented and on other counsel of record and other parties not represented by counsel unless the court excuses service
on other counsel of record and other parties not represented by counsel. The Notice must also be served on the judge then presiding over the case to
ensure that the judge is made aware that the limited scope representation has been completed, subject to the client’s right to object. The attorney’s
withdrawal is automatic, without entry of a court order, unless the client files a timely Objection to Withdrawal of Limited Scope Appearance.
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If the attorney makes an oral motion to withdraw pursuant to paragraph (c)(7)(i), with or without client objection, or if the client files a timely
Objection to Withdrawal of Limited Scope Appearance pursuant to paragraph (c)(7)(ii), the court must allow the attorney to withdraw unless the court
expressly finds that the attorney has not completed the representation specified in the Notice of Limited Scope Appearance. An evidentiary hearing is
required if the client objects to the attorney’s withdrawal based on the attorney’s failure to complete the representation. A nonevidentiary hearing is
required if the client objects on a ground other than the attorney’s failure to complete the representation, although the primary function of such a
hearing is to explain to the client that such an objection is not well-founded. A court’s refusal to permit withdrawal of a completed limited scope
representation, or even its encouragement of the attorney to extend the representation, would disserve the interests of justice by discouraging attorneys
from undertaking limited scope representations out of concern that agreements with clients for such representations would not be enforced.
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A limited scope appearance under the rule is unrelated to “special and limited” appearances formerly used to object to the lack of personal
jurisdiction. The use of such appearances ended with the adoption of Public Act 91-145, which amended section 2-301 of the Code of Civil Procedure
(735 ILCS 5/2-301) effective January 1, 2000.
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After completion, can withdraw by oral motion, if the client is present
If the client objects, an evidentiary hearing must be held on whether the
representation is completed by the attorney
The court must allow the withdrawal—no discretion
In the alternative, can withdraw by filing a Notice of Withdrawal
must serve the Notice on the party the attorney represents
Within 21 days, the client can file a written objection
If client does not, the withdrawal is automatic without entry of a court
order
If client objects, the attorney must notice up a hearing on the objection
If the grounds was the representation is not completed, an evidentiary
hearing must be held
After evidentiary hearing, court must allow withdrawal unless court
finds the attorney has not completed the representation specified
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(e) Limited Scope Appearance. After an attorney files
a Notice of Limited Scope Appearance in accordance
with Rule 13(c)(6), service of all documents shall be
made on both the attorney and the party represented on
the limited scope basis until 1) the court enters an
order allowing the attorney to withdraw under Rule
13(c) or 2) the attorney’s representation automatically
terminates under Rule 13(c)(7)(ii).
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Rule 137 on the signing of pleadings and sanctions, was
amended to add subsection (e):
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(e) Attorney Assistance Not Requiring an Appearance or
Signature. An attorney may assist a self-represented person in
drafting or reviewing a pleading, motion, or other paper without
making a general or limited scope appearance. Such assistance
does not constitute either a general or limited scope appearance
by the attorney. The self-represented person shall sign the
pleading, motion, or other paper. An attorney providing drafting
or reviewing assistance may rely on the self-represented
person’s representation of facts without further investigation by
the attorney, unless the attorney knows that such representations
are false.
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Notes that under Illinois Rule of Professional Conduct 1.2(c), an attorney may limit the scope of a representation if
the limitation is reasonable under the circumstances and the client gives informed consent.
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Such a limited scope representation may include providing advice to a party regarding the drafting of a pleading,
motion or other paper, or reviewing a pleading, motion or other paper drafted by a party, without filing a general or
limited scope appearance.
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In such circumstances, an attorney is not required to sign or otherwise note the attorney’s involvement and the
certification requirements in Rule 137 are inapplicable. Moreover, even if an attorney is identified in connection
with such a limited scope representation, the attorney will not be deemed to have made a general or limited scope
appearance.
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Consistent with the limited scope of services envisioned under this drafting and reviewing function, attorneys may
rely on the representation of facts provided by the self-represented person. This rule applies, for example, to an
attorney who advises a caller to a legal aid telephone hotline regarding the completion of a form pleading, motion
or other paper or an attorney providing information at a pro bono clinic.
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All obligations under Rule 137 with respect to signing pleadings and certifications apply fully in those limited
scope representations where an attorney has filed a general or limited scope appearance. Drafting a pleading,
motion or other paper, or reviewing a pleading, motion or paper drafted by a party does not establish any
independent responsibility not already applicable under current law.
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Attorneys need not fear that by drafting a pleading that they
will be dragged into the overall litigation as counsel of
record
Diminishes concerns that the client is not giving truthful
information, and that the attorney is somehow assisting in
the filing of a false pleading, absent his actual knowledge
Attorneys need not identify themselves as having drafted a
pleading, to the court or to other counsel in the case
Attorneys should not be subject to sanctions for doing that
which the rules allow
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Rule 4.2:
Generally an attorney shall not communicate with a
person represented about the subject of the
representation that the lawyers knows to be
represented, absent consent of the other attorney.
Rule 4.2 comments amended to note limited scope representation:
(2) “…This rule also applies to communications with any person who is
represented by counsel including counsel in a limited scope representation
pursuant to Rule 1.2(c), concerning the matter to which the communication
relates.”
(8a) “…when a person is being represented on a limited basis under Rule 1.2(c),
a lawyer is only deemed to know that the person is represented by another
lawyer, and the subject of that representation, upon receipt of (i) a proper Notice
of Limited Scope Appearance under Supreme Court Rule 13(c)(6), or (ii) with
respect to a matter not involving court proceedings, written notice advising that
the client is being represented by specified counsel with respect to an identified
subject matter and time frame. A lawyer is permitted to communicate with a
person represented under Rule 1.2(c) outside the subject matter or time
frame of the limited scope representation.”
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An attorney need not fear contacting a pro se litigant
about aspects of the case in which a limited scope
attorney is NOT involved.
The limited scope attorney will not be burdened with
communications on the other aspects of the case for
which he is not providing representation.
Query: is that a positive or a negative thing? Does it
help the attorney to know for sure what is going on in
other aspects of the case, while he works on his one
piece of the case?
Amendment to the comment 3 to Rule 5.5 on the unauthorized
practice of law:
(3) “A lawyer may provide professional advice and instruction to
nonlawyers whose employment requires knowledge of the law;
for example, claims adjusters, employees of financial or
commercial institutions, social workers, accountants and persons
employed in government agencies. Lawyers also may assist
independent nonlawyers, such as paraprofessionals, who are
authorized by the law of a jurisdiction to provide particular lawrelated services. In addition, a lawyer may counsel nonlawyers
who wish to proceed pro se. See Supreme Court Rule 137(e)
(lawyer may help draft a pleading, motion or other paper
filed by a pro se party). See also Supreme Court Rule 13(c)(6)
(lawyer may make a limited scope appearance in a civil
proceeding on behalf of a pro se party).
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By specifically referencing the limited scope
representation rules amendments in the unauthorized
practice rule 5.5 comments, it is made clear that these
actions are not considered the unauthorized practice
when performed by attorneys.
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Agreement in writing…you can’t rely on just the limited scope appearance form
Specific acknowledgement of the limited scope by the client by his signature thereto
Be sure that the description on the scope of the representation in the agreement MATCHES
the description in the appearance form
Agreement should reference what you are doing, and what you will not be doing
Use of check lists may be helpful
If you can’t describe the discrete task, then maybe you should not do it
Be sure you and your client know exactly what you are getting into
Be careful in using terms like “resolution of” or “completion of” unless you mean that
Don’t do anything “extra” outside the agreement because it will introduce confusion to the
scope
Try to withdraw in court with the client present, if possible
Judges may still need “educating” on what the rule allows. Be sure to identify yourself in
court to the judge and other counsel as having filed a “limited scope appearance.”
If you have trouble with any judge, consider a motion to reconsider, or involving the chief
judge.
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Written Client Agreements—what should they say and how
should they be formatted so there is a “meeting of the minds” as
to the scope of the work?
Will clients understand the limitations of the services (what is or
is not included?) Documentation will be important!
Attorney’s duty to inform client as to other important aspects of
the case, even if not part of the agreed to scope of representation
Are judges really letting attorneys out of cases in conformity
with the new rules?
How does the “automatic withdrawal” after the 21 day period
of no objection being filed really work, and how is it
evidenced in the court file?
Fee disputes—whether attorneys will/should get paid for tasks
they did but were not outlined in the agreement/appearance.
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See the handouts for helpful resources and references
on limited scope representation
Resource pages on the bar websites:
http://www.isba.org/practiceresoucecenter/limitedscope
http://lpmt.chicagobar.org/il-limited-scope/
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An attorney agrees to represent a woman in a post-divorce
proceeding for $500, and indicates on the limited scope
appearance form:
X In the court proceeding: hearing on enforcement of child
support, on the following date: August 15, 2013
X And in any continuance of that proceeding.
The attorney appears on August 15th, and on four further
court dates, because the husband and his attorney keep not
showing up, or asking for more time to comply with
financial records production. Nothing has really happened
yet. This is getting ridiculous, and the attorney is losing
money on this deal. His relationship with the client is also
going downhill because of the situation. Can he withdraw?
What should he do?
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In a car accident case, an attorney files a limited scope
appearance for the defendant Mary Smith, the form stating:
X At the following deposition(s): defendant Mary Smith.
The written representation agreement states the representation is
limited to “for the deposition of Mary Smith.”
The deposition takes place, where the attorney interposes
numerous objections, and instructions to the client not to answer.
The deposition is completed that day. Plaintiff then brings a
motion to compel the plaintiff’s testimony, arguing that the
objections and instructions not to answer were improper.
Does the attorney have to appear in court and defend the
defendant on the motion?
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An Illinois legal aid agency has embraced the idea of
offering unbundled legal services, in particular the drafting
of complaints for otherwise pro se plaintiffs who want to
bring small claims. They have a staff of law student clerks
to meet with the clients, and draft the complaints. No
attorney meets directly with the clients, but the attorney
does review the draft complaints before they are sent out to
the clients, who pay $20 flat fee for this service, and they
have signed an agreement (that the attorney has pre-signed
for the clerks’ use), where the client acknowledges that this
is a limited scope service, for the sole purpose of drafting a
complaint for them.
Is this practice acceptable under Rules?
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A legal aid attorney files a limited scope appearance to try to dismiss a credit
card debt case against the client, in the amount of $12,000, based on pleading
defects in the complaint. The written client agreement and the notice of limited
scope appearance clearly state that the representation is for the motion to
dismiss only.
The motion to dismiss is denied, and the attorney and client are both present in
court that day, and the attorney automatically withdraws under the Rules.
Two months later, the client calls the attorney, who now has a default judgment
in the amount of $12,000 plus costs against her, saying “you never told me I
needed to file a pro se appearance and file an answer to the complaint.”
What were the attorney’s obligations, if any, on advising the client about these
other aspects of the case?