Does Montana allow limited-scope or 'unbundled' legal representation?

Plain-English summary

The Montana Supreme Court asked the Bar to comment on proposed amendments to Rules of Professional Conduct 1.1, 1.2, and 4.2 and to Rule 11 of the Rules of Civil Procedure, intended to encourage limited-scope representation to address unmet legal needs. The Ethics Committee, acting under its mandate to review the rules, recommended against the amendments.

On the first question, the committee concluded that amending Rules 1.1 and 1.2 is unnecessary because existing Rule 1.2(c) and Rule 1.5(b) already authorize limited-scope representation "if the limitation is reasonable under the circumstances." It worried the amendments would authorize otherwise-unreasonable limitations and insulate the lawyers who agree to them, creating a "second tier" of representation.

On the second question, the committee concluded that permitting "ghostwriting" under Rule 11 would invite substandard work and invalid filings. On the third, it concluded that "unbundling" tends to diminish the lawyer's "advisor" role in favor of a "scrivener" role, serving the client's "wants" over the client's "needs."

In practice

The opinion reflects the committee's 2010 recommendation to the Montana Supreme Court, not a change in the rules. Per the opinion, limited-scope representation is permitted under existing Rule 1.2(c) when the limitation is reasonable under the circumstances; the committee recommended against amendments it viewed as authorizing unreasonable limitations. Because the opinion addressed a pending rule proposal, it does not establish the current Montana rule text.

Common questions

Q: Does Montana permit limited-scope ("unbundled") representation?

A: Per this opinion, yes: the committee read existing Rule 1.2(c) and 1.5(b) as already authorizing limited-scope representation when the limitation is reasonable under the circumstances.

Q: Did the Ethics Committee support the proposed amendments to expand limited scope?

A: No. It recommended against them, concluding they were unnecessary and risked authorizing unreasonable limitations and substandard work.

Q: What was the committee's concern about "ghostwriting"?

A: The opinion concluded that permitting ghostwriting under Rule 11 would invite substandard attorney work and increased invalid filings that burden the courts.

Q: How did the committee view "unbundling" and the lawyer's role?

A: It concluded that unbundling tends to diminish the lawyer's "advisor" role in favor of a "scrivener" role, emphasizing the client's "wants" over the client's "needs."

Background and rules framework

The opinion interprets the limited-scope provision of Rule 1.2(c) (Model Rule 1.2(c)) together with Rule 1.5(b) on fee communication, and discusses proposed changes to Rule 1.1 (Competence; Model Rule 1.1), Rule 4.2, and Rule 11 of the Montana Rules of Civil Procedure. Montana adopted the Model Rules with certain exceptions and does not adopt the ABA comments.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.1 / Mont. R. Prof. Cond. 1.1 (competence)
• Model Rule 1.2(c) / Mont. R. Prof. Cond. 1.2(c) (limited-scope representation)
• Model Rule 1.5(b) / Mont. R. Prof. Cond. 1.5(b) (communicating the scope and fee)
• Model Rule 4.2 / Mont. R. Prof. Cond. 4.2 (communication with represented persons)

Court rules:

• Montana Rule of Civil Procedure 11 (signing of pleadings; the "ghostwriting" proposal)

See also

• ABA Formal Op. 472: Limited-Scope Clients and Contact
• AK Bar Ethics Op. 93-1: Limited-Scope Help for Pro Se

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/101216.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION 101216

Facts: The Montana Supreme Court has requested members of the Bar
comment about proposed changes to the Montana Rules of Professional
Conduct and Civil Procedure. The proposed changes are to Rules 1.1, 1.2
and 4.2 of the Rules of Professional Conduct and Rule 11 of the Montana
Rules of Civil Procedure, along with the addition of two new Rules of Civil
Procedure, 4.2 and 4.3. The stated intent of the proposals is primarily to
encourage limited scope representation as one means of addressing the
unmet legal needs of low to moderate income Montanans.

The Ethics Committee offers the following Opinion pursuant to the mandate
of Article III of the State Bar Constitution to review the Rules of
Professional Conduct and recommend changes.

Questions Presented:

1. Are the proposed amendments to Montana Rules of Professional Conduct
   1.1 and 1.2 necessary to meet the stated goal of the Court?

2. Does the proposed amendment to permit “ghostwriting” under Rule 11 of
   Montana’s Rules of Civil Procedure reduce the standard of care by an
   attorney?

3. Are the proposed amendments consistent with the lawyer’s traditional
   “functions” as an “advisor,” “advocate,” and “negotiator”? (See Preamble: A
   Lawyer’s Responsibilities (3) of the Montana Rules of Professional
   Conduct.)

Short Answer:

1. No. The Ethics Committee believes that while the goal behind the
   proposed rules is commendable, the proposed amendments are unnecessary
   because Rule 1.2(c) and 1.5(b) already authorize limited scope
   representation “if the limitation is reasonable under the circumstances.”
   Conversely, if the limitation is not “reasonable under the circumstances,” it
   should not be permitted. The proposed amendments appear aimed at
   authorizing what otherwise would be “unreasonable” limited scope
   representations and insulating lawyers who agree to them. This, the

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committee fears, could create a second tier of representation that could result
in more confusion to clients and greater time and expense to the courts and
clients of counsel serving opposite a pro se litigant utilizing a limited scope
attorney. The current limited scope rule 1.2, in combination with the
existing rules of conduct (specifically Rule 1.5 on fees), are sufficient to
address the stated goal. Current rules provide a substantial amount of
elasticity, raising questions about the need for revisions.

2. Yes. The proposed amendment to Rule 11 of Montana’s Rules of Civil
   Procedure invites substandard attorney work and increased invalid filings
   that will only serve to clog already crowded Court dockets.

3. No. The proposed amendments, to the extent they promote the so-called
   “unbundling” of lawyer services, tend to diminish and de-value the lawyer’s
   counseling or “advisor” role and instead emphasize the lawyer’s scrivener
   role. While this changed emphasis arguably serves the client’s “wants,” it
   discourages qualitative attention to the client’s “needs” and in that sense
   actually undermines the stated goal of the proposed amendments.

Discussion:

A recognized need to expand services to indigent Montanans has gone far
beyond the stated purpose. If the goal is to expand services to indigent
Montanans, there is no need to develop rules which only serve to dilute the
ethical standards of Montana practice.

Historically, it has been presumed that clients are best served by attorneys
who are fully informed of the facts and the law relating to the matters
presented. The proposed Rules are a troubling step in the direction of “mass
produced” or “drive through” representation which, in the Committee’s view
cannot help but reduce the quality of the services provided. The proposed
Rules have already been the subject of a CLE titled “How to Grow Your
Law Practice,” with the pitch to those interested in “expanding your practice,
marketing your practice and increasing your client base by tapping into a
new pool of ‘pay as you go’ clients.” The tail is wagging the entire legal
profession dog, and the proposals before the Court have too many
unintended consequences.

The Committee is concerned that what is being presented as a means of
assisting (primarily) low income clients would risk further legitimizing a

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trend toward a reduced and qualitatively lesser form of legal representation.
The Committee is further concerned that limited scope representation may
be attractive to practitioners who, up to now, were reluctant to engage in
various areas of practice, but now will be encouraged to do so without the
necessary experience to engage in the area in a knowledgeable and ethical
manner. If the Court adopts the proposed rule changes, the result will be a
sea change for practice in Montana.

The Montana Ethics Committee deliberately chose to adopt the ABA Model
Rules with certain, albeit important, exceptions. The goal was to rely on the
uniform body of law that accompanies the Model Rules. The more Montana
strays from the Model Rules, the more completely we lose the combined
experience of other jurisdictions.

Montana’s Rules of Professional Conduct were addressed by the Ethics
Committee and adopted by the Supreme Court as a comprehensive system of
professional ethics. Also, when assessing an ethical challenge, discussion
usually involves an examination of several rules. The access community’s
Working Group clearly appreciated the challenge; hence their
recommendation involves four Rules of Professional Conduct and the Rules
of Civil Procedure.

The problem with the Working Group’s product is that they have selected
language from several states’ sets of rules, citing even comments within the
other states’ rules, and have developed a purely unique set of
recommendations for Montana. By doing so, the Working Group’s
proposals lose the context of the cited-state’s set of rules. A reading of any
of the literature associated with the unbundling issue establishes beyond
question that the states have vastly different interpretations regarding the
application of limited scope representation within the Model Rules. Most
allow some form of limited representation, per Model Rule 1.2. But from
there, the states go all over the unbundled map.

For example, the proposed changes to Rule 1.1 on Competence1 are from a
comment in Wyoming’s Rules of Conduct, not from within Wyoming’s
Rule. Wyoming’s Rule is identical to Montana’s Rule on competence.

1
Rule 1.1—Competence. A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for
the representation. A lawyer and client may agree, pursuant to Rule 1.2(c), to limit the scope of the
representation. In such circumstances, competence means the knowledge, skill, thoroughness, and

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If Montana is to add language, it must mean something. In the instant case,
the apparent meaning of the proposed amendment is a second tier of
competence for limited scope representation. The proposed rule seems to
contemplate full attorney service and the level of competence that
accompanies it, then limited scope service and the level of competence that
comes with that.

The standard within Montana (and the ABA Model Rule) 1.2(c) is “A
lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances…” If an attorney cannot meet the
threshold of reasonableness, then the task should not be limited to that scope
and an attorney should not do it. If the opinions cited by other states and
counties are consistent on one point, it is that the level of competence for
representation is the same in limited scope as with full service.2

It is this Committee’s opinion that there is only one level of competence.
To dilute Montana’s rules with the proposed language is to do a disservice to
limited scope clients and undermine the stated goal of the access to justice
community of meeting unmet legal needs. The proposed changes to Rule
1.1 are redundant, use as a model language that was simply a comment, not a
rule, and are completely unnecessary. If the language does not add context
or meaning, then it should be rejected.

An important Montana distinction from the Model Rules is Montana’s
requirement that “the scope of the representation and the basis or rate of the
fee and expenses for which the client will be responsible shall be in
writing…” The ABA Model Rule standard is “shall be communicated,
preferably in writing.” The proposed Rule 1.2(c)3 details circumstances that

preparation reasonably necessary for the limited representation. The proposed language to the existing
rule is in italics.
2
Worth noting is that both the Colorado and Washington Rules, heavily cited by the Working Group, rely
on ABA Model Rule 1.1 without amendment, explaining that an agreement to limit legal services does not
exempt a lawyer from a duty to provide competent representation.
3
Rule 1.2—Scope of Representation and Allocation of Authority Between Client and Lawyer. [Existing
subsections (a) and (b)]. (c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent in writing. (1) The client’s
informed consent must be confirmed in writing unless: (i) the representation of the client consists solely of
telephone consultation; (ii) the representation is provided by a lawyer employed by a nonprofit legal
services program or participating in a nonprofit court-annexed legal services program and the lawyer’s
representation consists solely of providing information and advice or the preparation of court-approved
legal forms; or (iii) the court appoints the attorney for a limited purpose that is set forth in the appointment
order. (2) If the client gives informed consent in writing signed by the client, there shall be the

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are already addressed in Montana’s Rule 1.5. Further, the proposed rule
comes from Iowa, which adopted the ABA language using the preferably
standard. Adding 30 lines as exceptions to an “in writing” requirement adds
nothing. Montana’s Rule 1.5 mandates written fee agreements and
exceptions thereto. Read in context of existing Montana Rule 1.2, Rule 1.5
suffices to define an attorney’s obligation concerning fee agreements.
Montana’s Rule 1.2, as written, fully contemplates limited scope
representation. The stated goal of enhancing representation of indigent
Montanans is already accomplished within Montana’s Rules. Creating
exceptions to a writing requirement for limited scope seems only to add a
layer of confusion.

Proposed Rule 1.2(c) also expands the notion of “limited scope
representation after informed consent.” Perhaps the whole notion of
informed consent in this context ought to be reviewed. This Committee is
concerned that particularly unsophisticated clients are generally bewildered
by being asked to sign consent documents and are apt not to understand
them. When especially vulnerable clients are asked to sign such documents,
they will sign them primarily because they do not have any real alternative.

The Ethics Committee also is disturbed by the proposed amendment to Rule
11 of the Rules of Civil Procedure to allow ghostwriting and full reliance on
representations by a client “unless the attorney has reason to believe that
such representations are false or materially insufficient.”4

While the mt.gov website (http://courts.mt.gov/cao/ct_services/probono) on
limited task representation/unbundling lists opinions favoring ghostwriting
within limited task representation, it falls short of mentioning the lengthy
series of federal cases and other ethics opinions advising caution or
prohibitions. In Montana, there is a Bankruptcy Court opinion, Ellingson v.
Monroe, 230 B.R. 426, 435 (Bankr. D. Mont. 1999) in which the court found

presumption that: (i) the representation is limited to the attorney and the services described in the writing;
and (ii) the attorney does not represent the client generally or in matters other than those identified in the
writing. [existing subsections (c) and (d) are re-designated as (d) and (e)]. The proposed language to the
existing rule is in italics.
4
Rule 11. Signing of Pleadings, Motions, and other Papers—Sanctions. (b) An attorney may help to draft
a pleading, motion, or document filed by the otherwise self-represented person, and the attorney need not
sign that pleading, motion, or document. The attorney in providing such drafting assistance may rely on
the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe
that such representations are false or materially insufficient, in which instance the attorney shall make an
independent reasonable inquiry into the facts. The proposed language to the existing rule is in italics.

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ghostwriting in violation of court rules and ABA ethics. At the time the
Ellingson opinion was written, the ABA had in place Informal Opinion 1414
from 1978, which advised that at a minimum a lawyer must make the court
aware of the fact that a document was drafted by a lawyer. That opinion
stated “[e]xtensive undisclosed participation by a lawyer…that permits the
litigant falsely to appear as being without substantial professional assistance
is improper.” The ABA’s own publication, the Annotated Model Rules of
Professional Conduct, presents the current national tone as follows:
“Such surreptitious representation, especially when it involves a
lawyer “ghostwriting” a document filed in court by a pro se litigant, is
not looked upon favorably. It results in the litigant representing to the
court that he or she is acting without the assistance of counsel when
this is not true, and permits a lawyer to evade the responsibilities
imposed by Rule 11 of the Federal Rules of Civil Procedure (requiring
lawyers to certify that there are grounds to support the allegations
made in court filings.)”
This statement is followed by citations from the federal courts in California,
Virginia, Colorado, South Carolina and the 1st and 10th Circuit Courts
[Annotated Model Rules of Professional Conduct, 6th Edition, p. 39].

The Working Group cites ABA Formal Opinion 07-446, which addresses the
challenges presented above head on:
“State and local ethics committees have reached divergent conclusions
on this topic. Some have opined that no disclosure is required [in the
footnote, states include Arizona, Illinois, Maine and Virginia].
Others, in contrast, have expressed the view that the identity of the
lawyer providing assistance must be disclosed on the theory that
failure to do so would both be misleading to the court and adversary
counsel, and would allow the lawyer to evade responsibility for
frivolous litigation under applicable court rules.” [The footnote lists
Colorado, Connecticut, Delaware, Kentucky and New York].

The ABA opinion goes on to state:
“In our opinion, the fact that a litigant submitting papers to a tribunal
on a pro se basis has received legal assistance behind the scenes is not
material to the merits of the litigation.”

We on the Montana Ethics Committee disagree. Our Bar in Montana is
small. We generally know opposing counsel. To have a practitioner who
deliberately chooses to walk a fine line regarding professional conduct

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involved as a ghost only serves to create chaos for the courts and retained
opposing counsel.

The ABA opinion counters:
“[T]he fact that a lawyer was involved will be evident to the tribunal.
If the assistance has been ineffective, the pro se litigant will not have
secured an unfair advantage.”

The pro se who retained an attorney to ghostwrite a document that the
tribunal deems ineffective is an unhappy pro se. The potential for a
disciplinary or malpractice complaint is significant, and any efficiency
realized in the judicial system by allowing ghostwriting is undone. The
ABA also uses the counter above to parry the argument that by having a
lawyer secretly ghostwrite pleadings, the unrepresented litigant gets the best
of both worlds—trained lawyer assistance and judicial leeway. But again,
small help exacerbates issues, it does not resolve them. Even a limited scope
lawyer is more inclined to tell a client “Quit being a damn fool and go
home”5 than a ghost lawyer doing a discrete task. Cheap, fast lawyers do
not serve as counselors at law, but as draftsmen, and there is no doubt that
given the opportunity, abuse will follow. The Committee is concerned that
complaints will be filed that should never be filed, but for the $1,000 paid to
a ghost lawyer to draft a complaint for which he or she is not responsible to
the Court for the matters alleged.

In addition to the above, it is the experience of this Committee, all practicing
lawyers who have billed clients for their services, that documents filed by
ghostwriters cost their clients, whether full or limited service, more in the
end. It is their experience that the represented client’s lawyer will be asked
by the Judge to draft the necessary documents, and they find themselves
responding to arguments that have no merit, with no dispassionate individual
standing between the Court and their brief in response to a peculiar motion.
Again, it seems the potential for increasing the workload of the Courts is
high.

The Committee notes that several states, including Colorado, require
disclosure. Where is the harm in having a lawyer write in any documents:
“Prepared within the Rules governing Limited Scope by Attorney X”?

5
Former U.S. Supreme Court Chief Justice Charles Evan Hughes notorious quote.

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Finally, we note that the Working Group indicates that it changed the
Washington rule, on which it relies for the amendments to Rule 11, to
expressly allow ghostwriting and to delete the attorney certification
requirements. The certification requirements of Washington’s Rule 11(b)
are set forth in the footnote below.6 Again, the context of the full rule and
set of rules in Washington is important. While ghostwriting may be
permitted, Washington has imposed standards far beyond those included in
the rules proposed in Montana. Also notable is the fact that Iowa, cited
above as the source for the proposals on Rule 1.2, has opined that
“ghostwriting of pleadings is deception on the court, where the pleading is
represented as pro se, but the party has received counseling and advice from
a lawyer.” See Iowa Ethics Opinion 94-35. Further, Iowa’s Ethics Opinion
98-1 held that a lawyer may provide limited background advice and
counseling to a pro se litigant, but may not provide more extensive services
such as drafting (“ghostwriting”) litigation documents, which would
generally be misleading to the court and other parties.

The members of the Working Group have clearly been working to address
the issue of representation for indigent Montanans for a long time. The
Ethics Committee respects the time and attention paid and admires their
resolve. The goal of meeting unmet legal needs and removing arbitrary
barriers to justice is one shared by all lawyers. But the Ethics Committee
suggests that to a significant extent the stated goal is accommodated by the
existing rules. The Ethics Committee would welcome an opportunity to meet
with the Working Group to develop language within the Montana Rules of
Professional Conduct that would address the need identified, without
invoking a sea change to full or limited service representations.

                      THIS OPINION IS ADVISORY ONLY

6
Washington Superior Court Civil Rule CR 11(b) provides: In helping to draft a pleading, motion or
document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the
pleading, motion, or legal memorandum, and that to the best of the attorney's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances: (1) it is well grounded in fact, (2) it
is warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law or the establishment of new law, (3) it is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation, and (4) the denials of
factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a
lack of information or belief. The attorney in providing such drafting assistance may rely on the otherwise
self-represented person's representation of facts, unless the attorney has reason to believe that such
representations are false or materially insufficient, in which instance the attorney shall make an
independent reasonable inquiry into the facts.

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