Can a Colorado lawyer provide limited scope (unbundled) representation or ghostwrite pleadings for a self-represented litigant, and what must the lawyer disclose to the court?

Plain-English summary

Opinion 101 is a new opinion approved May 21, 2016, replacing the Committee's 1998 opinion of the same number. It explains how Colorado lawyers may provide limited scope representation (also called unbundling) in light of the Colorado Supreme Court's 1999 amendment to Colo. RPC 1.2(c) and related rule changes. Under Rule 1.2(c), a lawyer may limit the scope or objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. The opinion notes that limited scope work commonly takes four forms: limited litigation assistance, ghostwriting pleadings or briefs, non-litigation advice, and transactional assistance.

The opinion concludes that whether a limitation is "reasonable" is fact-specific. It gives examples: representing a client only on a child-support modification in a post-decree matter may be reasonable, but representing a client only on maintenance in a dissolution may not, because property, maintenance, and attorney-fee issues are intertwined. Informed consent under Rule 1.0(e) requires the lawyer to explain the specific services to be provided, the option and cost of full representation, the risk of proceeding without counsel, and the likelihood the client will need further advice later. The opinion recommends, consistent with ABA Formal Opinion 472, confirming the scope in a writing the client can read, understand, and refer to later, and addresses the fee-writing requirement of Rule 1.5(b).

On candor, the opinion explains that under C.R.C.P. 11(b) and 311(b) a pleading an attorney drafts for a pro se party must carry the attorney's name and registration number, which (combined with Rule 3.4(c)'s duty to follow tribunal rules) means a lawyer generally must disclose ghostwriting assistance, though no disclosure is required for merely helping a client complete court-issued forms. The opinion also walks through how all other Rules continue to apply, including competence (1.1), communication (1.4), reasonable fees (1.5), conflicts (1.7), advertising (7.1 through 7.3) and UPL (5.5), and how an opposing lawyer should treat a party who is receiving unbundled services under Rules 4.2 and 4.3.

In practice

The opinion holds that, under Colo. RPC 1.2(c) and the related Colorado rules as the Committee read them, a Colorado lawyer may provide limited scope representation and ghostwrite court filings for self-represented litigants if the limitation is reasonable and the client gives informed consent. It holds that the lawyer's drafting assistance generally must be disclosed to the court under C.R.C.P. 11(b) or 311(b) (and the related notice of limited appearance under C.R.C.P. 121, section 1-1(5)), except where the lawyer only helps the client complete forms issued by the judicial branch. It holds that all other Rules of Professional Conduct continue to apply to the limited engagement, including competence, communication, reasonable and (for new or occasional clients) written fees, conflicts, advertising, and unauthorized-practice limits. The opinion also describes how a lawyer opposing a party who received unbundled services should apply Rules 4.2 and 4.3, treating a ghostwritten pro se party as unrepresented under Rule 4.2, comment [9A], absent knowledge of ongoing representation.

Common questions

Q: Can a Colorado lawyer take on just part of a case?

A: Yes, if it is reasonable. The opinion concludes that Colo. RPC 1.2(c) lets a lawyer limit the scope or objectives of the representation when the limitation is reasonable under the circumstances and the client gives informed consent, and it gives examples of when limiting scope is and is not reasonable.

Q: Is ghostwriting pleadings for a pro se litigant allowed?

A: Yes, with disclosure. The opinion concludes that the Colorado Supreme Court expressly permitted ghostwriting, but that under C.R.C.P. 11(b) and 311(b) the attorney who drafts a pleading for a pro se party must include the attorney's name and registration number, so the assistance is generally disclosed; helping a client fill out court-issued forms does not require disclosure.

Q: What does informed consent require for limited scope work?

A: A real explanation. The opinion concludes the lawyer must explain exactly which services the lawyer will and will not perform, that full representation is available but more costly, that proceeding without counsel risks mistakes that may be expensive or impossible to fix, and that the client may need further legal advice later, and it recommends confirming the scope in a writing the client can keep.

Q: Do the other ethics rules still apply to a limited engagement?

A: Yes, all of them. The opinion concludes that limiting scope does not exempt a lawyer from competence (Rule 1.1), communication (Rule 1.4), reasonable fees (Rule 1.5), conflicts (Rule 1.7), or the advertising and UPL rules; the lawyer's responsibilities are the same whether the representation is full or limited.

Q: How should a lawyer deal with an opposing party who is using unbundled services?

A: It depends on whether the limited-scope lawyer is representing the party on the matter at hand. The opinion concludes that, following ABA Opinion 472, a pro se party who only received ghostwriting under C.R.C.P. 11(b)/311(b) is treated as unrepresented under Rule 4.2, so the lawyer may communicate directly; but if the opposing lawyer represents the party on all communications about the matter, Rule 4.2 requires communicating only through that lawyer.

Background and rules framework

The opinion interprets Colo. RPC 1.2(c) (limiting the scope of representation) together with the informed-consent definition in Rule 1.0(e), the communication duties of Rule 1.4(a)(2), the fee rules of Rule 1.5(a)-(b), the candor duties of Rule 3.3(a)(1) and 3.4(c), the anti-contact and unrepresented-person rules of Rules 4.2 and 4.3, the advertising and solicitation rules of Rules 7.1 through 7.3, the UPL rule (5.5), and Rule 8.4(c). It reads these alongside C.R.C.P. 11(b), 311(b), and 121, section 1-1(5), which govern attorney disclosure and notices of limited appearance, and it draws on ABA Formal Opinions 472 and 07-446.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.2(c) / Model Rule 1.2 (limiting scope of representation)
• Colo. RPC 1.0(e) (informed consent) and Rule 1.4(a)(2) / Model Rule 1.4 (communication)
• Colo. RPC 1.5(a)-(b) / Model Rule 1.5 (reasonable fees; fee in writing)
• Colo. RPC 3.3(a)(1) and 3.4(c) / Model Rules 3.3, 3.4 (candor; obeying tribunal rules)
• Colo. RPC 4.2 and 4.3 / Model Rules 4.2, 4.3 (represented and unrepresented persons)
• Colo. RPC 5.5, 7.1-7.3, 8.4(c) / Model Rules 5.5, 7.1-7.3, 8.4 (UPL; advertising; misconduct)

Court rules:

• C.R.C.P. 11(b) and 311(b) (attorney disclosure on ghostwritten pleadings)
• C.R.C.P. 121, section 1-1(5) (notice of limited appearance and completion)

Cases:

• Johnson v. Bd. of Cty. Comm'rs, 868 F. Supp. 1226 (D. Colo. 1993), unbundling prohibited in the federal district court in Colorado
• People v. Gabriesheski, 262 P.3d 653 (Colo. 2011), substantive law determines whether a client-lawyer relationship exists

Other opinions cited:

• ABA Formal Op. 472 (2015): communication with a person receiving limited-scope legal services
• ABA Formal Op. 07-446 (2007): undisclosed legal assistance to pro se litigants
• D.C. Bar Op. 330 (2005); State Bar of Ariz. Op. 06-03; N.C. Formal Op. 2005-10

See also

• ABA Formal Op. 472: Communicating With Limited-Scope Clients
• ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
• ISBA Op. 849: Preparing Pleadings for a Pro Se Litigant

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/FormalEthicsOpinion_101.pdf