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Rule revision aims to broaden use of limited scope representation

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Indiana attorneys soon will have an easier time crafting arrangements that allow them to represent clients on a limited basis.

The Indiana Supreme Court revised the Indiana Rules of Trial Procedure to allow pro se litigants and other potential clients to use limited scope representation more often and without some of the restraint they’ve had in the past. Although this practice exists and is used now, Indiana lawyers have had to file general appearances rather than limited ones, and trial judges have had discretion as to whether a lawyer may withdraw. Greater restrictions are placed on that discretion with the limited scope restriction rule change that takes effect Jan. 1.

Indiana is embracing a concept many states have implemented in recent years, as courts nationwide try to cope with a tougher economy and an influx of self-represented individuals into the judicial system. The legal community’s use of limited scope representation is one option, giving attorneys the ability to represent someone on a portion of a case and for a fraction of their usual fee.
 

smith-maggie-mug Smith

“This is a sweeping and very significant rule change,” said Indianapolis appellate attorney Maggie Smith with Frost Brown Todd. “Indiana didn’t recognize this before, and attorneys were basically in for everything until a trial court let you out. This move to handle things a la carte reflects our economic realities and really gives lawyers and clients more flexibility.”

The court’s rule change came in a series of orders issued Sept. 20 revising trial, evidentiary, appellate practice and other aspects of statewide court rules. Specifically, the court changed Trial Procedure Rule 3.1(I) dealing with appearances, indicating that an attorney must initially file a notice of temporary or limited representation and then at the end of service file a notice of completion with the local court clerk. Section H involving withdrawal of representation is also changing to reflect this shift, requiring that trial courts grant an attorney’s withdrawal motion unless a jurist finds it is not reasonable or consistent with efficient administration of justice.

These trial rules compliment the existing Indiana Rule of Professional Conduct 1.2, which went into effect in 2004 and generally allows lawyers to limit their scope and representation as long as it’s reasonable under the circumstances and the client gives informed consent. That is based on a model crafted by the American Bar Association about 10 years ago and adopted to some degree by most states.

The logic is simple: by only paying a lawyer to handle a limited part of a case, a litigant or client can save money on legal fees while having legal representation, the lawyer can use his or her time more efficiently by focusing on specific items, and a litigant can maintain greater control of expenses.

In general, services may include advice and counsel, limited court or administrative appearances, and assistance with documents and pleadings. Each of these categories may be further broken down into discrete tasks, and a lawyer may provide a combination of services.

Some Indiana attorneys already use this option in their practice, but those examining and crafting the new rule revision say it hasn’t been a widespread practice and some of the current withdrawal limitations have hampered its use.


Melissa May May

Indiana Court of Appeals Judge Melissa May, who chairs the Pro Bono Commission that recommended this rule revision, said that years ago when pro bono initiatives began, lawyers would commonly take a case from start to finish. But that’s changed, especially during more complicated legal matters such as protracted custody battles, and this move could help increase the amount of pro bono representation.

“This is going to help a lot,” she said. “In times where money is tough, we want to get as many attorneys involved so people can get access to legal services they need.”

Little guidance has been provided on this topic by the Indiana appellate courts since the professional conduct rule involving limited scope representation was passed, but the state’s Court of Appeals examined it in August 2010 for what it described as the first “substantive” time.

In Gail M. Flatow and Flatow Comer, LLP v. Dwane Ingalls, No. 49A02-0910-CV-994, the appellate court addressed a legal malpractice complaint against several attorneys and the law firm Flatow Comer in Carmel. Dwane Ingalls alleged that defendants were negligent in failing to respond to a cross-motion for summary judgment, despite a limited representation agreement they’d reached saying the firm would only represent Ingalls on one particular count in the underlying action by drafting a motion for summary judgment and reply brief.

The appellate court majority concluded that the firm’s only duty was to file a motion for summary judgment on the defamation claim, reply to any response, and keep Ingalls informed of the status of that matter. The Indiana Supreme Court earlier this year declined to take the case.

Judge Margret Robb noted in that ruling that Comments 6 and 7, which discuss when limited representation may be appropriate, say that the limitation is a factor to be considered when determining legal knowledge and skill reasonably necessary for representation. Judge James Kirsch wrote a separate concurring opinion that took a “more expansive view of the professional obligations” Flatow and the firm owed to Ingalls. To him, the correct interpretation of the contract was that although Flatow and the firm limited their representation to Ingalls’ defamation claim, they didn’t limit their representation of that claim.

Indianapolis attorney Pat Olmstead with Hoover Hull handled that appeal, and he’s been a frequent user of limited scope representation. He’s taught continuing legal education on the topic and has assisted other lawyers with drafting their own limited scope representation letters and agreements.

Olmstead said limited scope representation most often arises when lawyers are evaluating and investigating whether to represent a client, and other limited scopes arise when an otherwise pro se client decides that he or she needs professional assistance – such as in responding to a summary judgment motion or appellate brief.

“We have seen attorneys enter limited appearances, but not often. It’s a fair conclusion that this change to the trial rule, expressly providing for limited appearances, will help publicize this option to the bar,” he said. “In an era where people try to unbundle costs and services, I think the rule reflects that changing reality of how we will be, or are, conducting business.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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