By Maya Kushner, Esq.
As you may know, a lawyer’s actions are guided by the ethics rules called Rules of Professional Conduct (RPCs). The Model RPCs are written by the American Bar Association (ABA), a national volunteer organization with nearly 400,000 members, including judges, lawyers, and law students. The Model RPCs are meant to be a guide, and every state has adopted a version of them, with some variations. These rules dictate what a lawyer may and may not do in her profession, and also provide a mechanism for punishment if the rules are not followed.
One of the rules states that a lawyer may limit the scope of the representation when certain conditions are followed: the lawyer must explain the limited scope to the client, the client must agree in writing, etc. For example, if a client was charged with a DUI, which in Maryland has criminal ramifications (potential jail time) and administrative penalties (revocation of the the driver’s license), a lawyer and client are permitted to agree that the lawyer would only handle the criminal aspect of the case. Under this rule and using this example, however, the lawyer would not be able to limit her involvement any further; she would not be able to file legal motions in court but not appear for and represent the client in hearings before the court. Instead the lawyer was expected to handle the entire case, both inside and out of the courtroom.
But this longstanding rule has recently changed in Maryland. As of February 2015 a lawyer and her client are permitted to agree to limit the legal representation as they wish. An attorney is now allowed to provide a myriad of a la carte legal services without entering her appearance in the case (i.e. becoming the attorney of record in the case), including:
- giving legal advice to the client about his rights,
- conducting factual investigations for the client,
- representing the client in settlement negotiations or private alternative dispute resolution proceedings,
- evaluating and advising the client with regard to settlement options or proposed agreements,
- drafting documents, performing legal research, and providing advice that the client or another attorney (the client has hired) may use in court proceedings,
- arguing only select portions of the client’s case in court.
This amendment is a welcome change for those who may not be able to afford to retain an attorney for the entire case. Attorneys usually charge per hour of their work, whether the work is legal research, drafting motions, or appearing in court. Now clients in Maryland can decide for themselves which parts of their case they need legal help with, and which parts they can handle themselves. The net effect consists of saving money on legal fees.
The biggest impact of this amendment will probably be in the area of drafting pleadings and motions. Before, ghostwriting was prohibited: that is a lawyer could not draft a document for a pro se litigant (a person who was registered as representing himself in the case). Now ghostwriting is specifically allowed; a client may retain an attorney to research a particular issue, to draft a legal document, and to advise the client on its meaning, without the obligation of paying the same attorney for presenting the document in court.
If you are considering retaining an attorney for limited representation, remember that clear communication is key. Be sure to be very specific about what you want and expect from the relationship, and who will handle which parts of the case. Keep in touch with your attorney to keep abreast of what’s going on in the case, especially since in many cases the courts will forward all notices to the attorney, regardless of whether an agreement of limited representation is in place. To ensure that the client and the lawyer understand the scope of the proposed division of labor for legal services, the lawyer and the client must sign a document acknowledging the scope of limited representation, which may be filed in the corresponding court case.