Tuesday, March 13, 2012
From the web page of the Pennsylvania Disciplinary Board:
The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.
The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.
The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.
The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:
- a client must be informed of any significant problems a limitation might entail, and the client must consent;
- any contract limiting the representation is construed from the standpoint of a reasonable client;
- the fee charged by the lawyer must remain reasonable;
- any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
- the terms of the limitation must be reasonable under the circumstances.
The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:
- competent representation (RPC 1.1);
- diligence (RPC 1.2);
- communication (RPC 1.4);
- representation agreements (RPC 1.5);
- confidentiality (RPCs 1.6 and 1.9); and
- avoidance of conflicts of interest (RPCs 1.7, 1.8, 1.9, 1.10, 1.11, 1.12).
Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.
This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.