Certain features of the American legal tradition are so fundamental as to be virtually sacrosanct: the adversarial system, attorney-client privilege, and pounding on the table to make a forceful point. Some basic assumptions underlie this model, including that lawyers provide litigants with beginning-to-end “full representation” in a case. To do otherwise has long been considered ethically questionable, if not explicitly forbidden, under rules of professional conduct. However, when this model fails to provide representation of any sort for the millions of Americans engaged in potentially life-changing cases, it’s time to try some new thinking.
The Practising Law Institute recently presented an excellent program titled “Limited Scope Representation 2014: Ethical & Practical Challenges” that explored this relatively new approach to legal representation. “Limited scope” representation, in which a full attorney-client relationship is formed between lawyer and client for a brief period to address onlya discrete aspect or stage of a fuller legal matter, is increasingly seen as a way to bridge the justice gap for litigants who typically face important legal issues, for example housing rights or eviction prevention, without any legal counsel. The program held particular interest for me as I developed the first Volunteer-Lawyer-for-the-Day pilot for litigants in consumer debt cases in the New York City Civil Courts, under the auspices of the New York State Courts’ Access to Justice Program and its pioneering Director, the Honorable Fern Fisher.
The program was moderated by Liliana Vaamonde, Training Director of the Civil Practice for The Legal Aid Society, and featured an excellent lineup of speakers with unique experiences and points of view, including Professor Philip Genty of Columbia Law School (on the concept of unbundled legal services and recent disciplinary rule changes to endorse them), Brenna DeVaney of Skadden, Arps, Slate, Meager & Flom LLP (on an innovative school-based program to provide limited-scope services to families in need), Lauren Donnelly of The Legal Aid Society (on the Housing Help program that provides a range of legal services from advice to full representation to prevent homelessness), and, of course, Judge Fisher herself, who is both a champion of the limited scope movement and a foremost expert on its theory and implementation.
The panelists touched on a number of key issues around the benefits and challenges of limited scope in a relatively short time, including the mechanics of limited scope representation (sign a new limited scope retainer for each brief engagement!), conflicts (see ABA Model Rule 6.5 and its state analogs), and its attractiveness to busy pro bono attorneys (help clients in need through a predefined time commitment, without the threat of becoming locked into an ongoing case). They were also careful to acknowledge the legitimate shortcomings of these models for certain subsets of litigants. For example, some litigants’ circumstances are legally complex, while others need a more meaningful and long-term relationship with a legal provider for reasons including domestic violence, age, or disability.
While all agreed that full representation for every client who needs it is the ideal, we live in the practical world, and it was inspiring to see PLI and these talented and thoughtful panelists explore these practical solutions.