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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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