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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