Limited scope representation: half a case may be better than none

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Published on 2/22/10

The impact of the recession on the legal profession has been felt the most by many of the nation’s 1 million-plus lawyers who are sole practitioners or members of small firms.

These lawyers are not at the top of the compensation scale to begin with. They generally work in what’s called “the consumer side” of law, representing individual clients and small businesses in personal injury, family disputes, criminal defense and personal debtor claims that tend to pay less.

In tough times, many such practitioners have experienced a reduction in the number of clients and matters they serve. And, inescapably in such an economy, these clients tend to drag out their payments for services. The financial and economic difficulties these lawyers face have been substantial.

One idea that seems to be taking hold here and elsewhere is the cost-saving measure known as “limited scope representation” or “limited assistant representation.”

Forty-one states have adopted an American Bar Association model rule or related variation to allow lawyers to take only part of a case. That could mean a person or business hiring a lawyer to help them fill out forms, prepare documents, coach them on how to present in court or represent them in court for one or two hearings.

Proponents disagree with lawyers who see this as undermining the value of the legal profession, arguing that litigants who can afford a lawyer will continue to use one until their case is resolved, “[b]ut for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage.”

Giving representation this way to people of limited means also gives business to lawyers who otherwise would not have it. It recognizes that attorneys are in business to make a living while helping people with their personal issues. It draws a distinction between providing services at a reasonable fee and providing pro bono services without charge.

Lawyers have a professional obligation to provide legal services not just to the clients who can pay for them, but to the people who cannot afford them, according to some in the profession. It is a position not without opposition. Limited scope representation occupies a middle ground between the two.

If the individual has modest means and can pay something, the process for determining the fee may be different. One could continue to bill by the hour but for a limited scope as agreed to by both the lawyer and the client. Alternatively, the attorney could set a fixed fee for the unbundled segment.

Overall, such a fee-setting process is no different than the process for determining a full engagement fee.

If a lawyer performs limited scope representation because the client is short of funds for the full engagement, he may want to be more diligent and request full payment in advance of delivering the service or advice. Without that, the client may exert subtle or overt pressure to ultimately make the legal service a pro bono matter.

Limited scope representation may be the best way to provide affordable legal services while giving attorneys paying work that may even lead to a full-time client later on.

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