Can a legal aid clinic lawyer give Tennessee pro se litigants limited 'unbundled' help without becoming their counsel of record?

Plain-English summary

The opinion responds to lawyers asking about their ethical responsibilities in a pilot program run by the Community Legal Center of Memphis with the Administrative Office of the Courts' Working Group on Self-Represented Litigants. In the Pro Se Clinic, housed in the Shelby County Courthouse, part-time attorneys paid modest compensation by the Center give limited advice and assistance to people who cannot afford counsel in divorce and related matters, without becoming counsel of record. Each client signs a disclosure form confirming the limited nature of the help (RPC 1.2(c)) and acknowledging the lawyer's compensation by the Center (RPC 1.8(f) and 5.4(c)).

On the first question, the opinion concludes that RPC 1.2(c) permits a lawyer to limit the scope of representation if the client consents and the limitation is reasonable, which turns on the specific facts. The opinion frames the test as whether the lawyer can still provide competent representation (RPC 1.1) within the limits, and whether the client will be in a better position with limited services than with none. It treats the clinic's written disclosures, signed after consultation, as adequate to support limited representation.

On the firm question, the opinion concludes that the clinic should be able to operate without being treated as a "firm." Drawing on Comment [1] to RPC 1.10, it reasons that the part-time attorneys, who are often the only lawyer present, can avoid firm treatment by maintaining confidentiality between themselves, restricting access to each other's files, and informing clients of their non-affiliation. For the same reasons, clinic attorneys are not members of the Center's firm. The opinion also declines to grant a blanket "presumption of reasonableness," stating the Board likely lacks that power, while noting the Board presumes attorneys act reasonably and that pro bono service makes a reasonableness challenge unlikely.

On disclosure, the opinion follows Tennessee Formal Ethics Opinion 85-F-83 and authorities from other jurisdictions (Delaware 1994-2, Florida 79-7 Reconsideration, Alaska 93-1, New York City 1987-2, and Virginia LEO 1127) and concludes that a lawyer who prepares court documents for a pro se litigant should notify the court of the assistance; it recommends the phrase "Prepared with Assistance of Counsel" be placed prominently on such pleadings.

In practice

The opinion holds that, under the Tennessee rules as they stood at the time, a clinic lawyer may give unbundled assistance to a self-represented litigant when the limitation is reasonable under RPC 1.2(c) and the client gives written informed consent after consultation. Per the opinion, reasonableness turns on whether the lawyer can provide competent help (RPC 1.1) within the limits and whether the client is better off with limited services than none. The opinion holds that part-time clinic lawyers are not a "firm" for conflict-imputation purposes if they keep confidences between themselves, restrict access to each other's files, and tell clients of their non-affiliation. For documents the lawyer prepares, the opinion recommends placing "Prepared with Assistance of Counsel" prominently on the pleading.

Common questions

Q: Can a Tennessee lawyer help a pro se litigant with only part of a case?

A: Yes. The opinion applies RPC 1.2(c) and concludes a lawyer may limit the scope of representation (for example, advising on or preparing a divorce complaint, parenting plan, or settlement agreement) if the limitation is reasonable and the client consents, preferably in writing.

Q: When is a limited-scope arrangement "reasonable"?

A: Per the opinion, the focus is whether the lawyer can still provide competent representation within the limits (RPC 1.1) and whether the client will be in a better position with the limited service than with no service. The opinion ties this to the client's ability to handle the matter and the complexity of the matter.

Q: Are part-time clinic lawyers treated as one law firm for conflicts?

A: The opinion concludes they need not be, citing Comment [1] to RPC 1.10. They can avoid "firm" treatment by keeping confidences between themselves, restricting access to each other's files, and informing clients that they are not affiliated.

Q: Does the lawyer have to tell the court about the assistance?

A: The opinion recommends that pleadings prepared for a pro se litigant bear "Prepared with Assistance of Counsel" in a prominent manner, following Tennessee Opinion 85-F-83 and out-of-state authorities.

Background and rules framework

The opinion interprets Tennessee RPC 1.2(c) (Model Rule 1.2) on limiting the scope of representation, read with RPC 1.1 (Model Rule 1.1) on competence and RPC 1.10 (Model Rule 1.10) on imputation and the definition of a "firm." Because the clinic lawyers are paid by the legal services organization rather than the client, the program also relies on RPC 1.8(f) (Model Rule 1.8(f)) and RPC 5.4(c) (Model Rule 5.4) on third-party compensation and professional independence. The disclosure discussion rests on RPC 8.4 (Model Rule 8.4) and the line of opinions addressing undisclosed assistance to self-represented litigants.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / Tennessee RPC 1.2(c) (limiting the scope of representation)
• Model Rule 1.1 / Tennessee RPC 1.1 (competence)
• Model Rule 1.10 / Tennessee RPC 1.10 (imputation; definition of a "firm")
• Model Rule 1.8(f) / Tennessee RPC 1.8(f); Model Rule 5.4 / Tennessee RPC 5.4(c) (third-party compensation; independence)
• Model Rule 8.4 / Tennessee RPC 8.4 (misconduct; dishonesty)

Other opinions cited:

• Tennessee Formal Ethics Opinion 85-F-83 (undisclosed participation by a lawyer)
• Colorado Bar Association Ethics Opinion 101 (thoroughness and preparation in limited representation)
• Delaware State Bar Ethics Opinion 1994-2; Florida Bar Opinion 79-7 Reconsideration; Alaska Bar Opinion 93-1; New York City Bar Formal Opinion 1987-2; Virginia Legal Ethics Opinion 1127 (disclosure of attorney assistance to pro se litigants)
• ABA Informal Opinion 1444 (extensive undisclosed participation is improper)

See also

• ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
• Colorado Op. 101: Unbundling and Limited-Scope Representation
• Illinois Op. 85-06: Preparing Pleadings for a Pro Se Litigant
• Alaska Op. 93-1: Disclosure of Attorney Assistance to Pro Se Litigants

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2005-f-151

Original opinion text

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

2005-F-151 - Memphis Pilot Program

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 2005-F-151

Lawyers have concerns about ethical responsibilities while employed by a legal services organization in a pilot program intended to provide limited legal services to otherwise pro se litigants.

The Community Legal Center (CLC) of Memphis, Tennessee, in conjunction with the Administrative Office of the Courts’Working Group on Self Represented Litigants has established a pilot program to provide limited representation services to unrepresented persons in divorce and related matters. The Pro Se Clinic is housed in the Shelby County Courthouse.

Initially, two attorneys staff the office at different times. The attorneys are paid modest compensation by CLC. The attorneys consult with persons financially unable to afford legal representation in domestic relations matters. In cases deemed appropriate, one of the attorneys provides limited advice and assistance without becoming counsel of record in the matter. In assessing the appropriateness of matters, the attorney attempts to assess the capacity of the client to understand the procedures, the complexity of the matter and other pertinent factors.

The attorney discloses the compensation by CLC to each client and obtains the client's compliance with RPC 1.8(f) and 5.4(c). Each client assisted is required to sign a disclosure form confirming the limited nature of representation to comply with RPC 1.2(c).

Rule 1.2 Scope of the Representation and the Allocation of Authority between the Lawyer and Client

(c) A lawyer may limit the scope of a client’s representation if the limitation is reasonable under the circumstances and the client gives consent, preferably in writing, after consultation.

Comments

Agreements Limiting the Scope of the Representation

[7] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[8] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See RPC 1.1.

The attorney may assist the client in preparing documents for filing such as a divorce complaint, summons, protective order application, property settlement agreement or decree. The client is informed that the attorney is not representing the client on an ongoing basis and that the limited representation is concluded when the consultation ends. The attorney may assist the client in one or more aspects of the legal matter thereby unbundling the legal representation. It is disclosed to the client that the attorney will not make any court appearances.

The Pro Se Clinic's services are provided without charge to persons unable to afford counsel. The clinic fulfills a need within the system of justice for legal aid to poor people whose

needs are not met by a legal services or pro bono attorney accepting the case and appearing as attorney of record.

ISSUES

• How may the Pro Se Clinic attorney assure that the limited representation is reasonable under the circumstances?

• May the Pro Se Clinic's limited services be presumed reasonable?

• Shall the lawyers providing services be considered to be associated in a law firm for conflict of interest purposes?

• Shall it be sufficient disclosure to the court if the Pro Se Clinic attorney states in writing that the document was prepared with the attorney's assistance without an intention to become counsel of record in the matter?

1. RPC 1.2(c) allows a lawyer to limit the scope of a client's representation if the client consents and if the limitation is reasonable under the circumstances. What is reasonable depends on the specific facts.

The primary focus in this inquiry is whether the attorney can provide competent representation despite the limitations on the services. The question will usually become whether the client will be in a better position with limited services than with no services.

The attorney’s assessment of the clients’ability to represent themselves is the first step. If a client comprehends the elements of a parenting plan form, the assistance of a lawyer in completing a plan form is beneficial. Closely connected is the complexity of the legal matter. In a routine parenting plan, the court will benefit from the lawyer's limited assistance in preparing the plan.

In Colorado Bar Association Ethics Opinion 101, the Rules of Professional Conduct were applied to a similar inquiry. The opinion states:

Thoroughness and preparation requires the lawyer to make the factual inquiry necessary to understand the client's legal situation and provide competent advice.

The nature of the required ‘thoroughness and preparation’is not the same in every matter. As noted in the Comment to Rule 1.1. (Comment 5. in the Tennessee RPC):

The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions require more elaborate treatment than matters of lesser consequence.

The inquiring attorneys intend to advise each prospective client of the risks of the client proceeding pro se, even with the attorney’s limited advice and assistance. The disclosures in writing signed by the client appear to be adequate to allow limited representation by the Pro Se Clinic. RPC 1.2(c) states that the client consent is preferably in writing, after consultation. See RPC 1.0(c) definition of “consultation” and RPC 1.0(b) definition of “written consent.” Consent forms are useful in practice but, in any case, a lawyer may have to supplement the form to deal with particular issues.

2. The attorneys request the Board to allow a presumption of reasonableness for representations under the pilot program. The Board does not, in all probability, have such powers.

The Board presumes all attorneys will act reasonably in the conduct of their business. Given that these services are rendered pro bono, it is unlikely that an arguable case of reasonableness would be questioned or sanctioned.

3. The Pro Se Clinic should be able to operate without being considered to be a “firm.” Comment 1. to RPC 1.10 states:

Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyers is attributed to the other.

The Pro Se Clinic is staffed by part-time attorneys who will often be the only attorney present. By maintaining confidentiality between themselves, by restricting access to each other’s files and by informing clients of their non-affiliation, the attorneys should be able to avoid being considered a “firm.” Although not required because the lawyers in the clinic are not in a firm, they may want to consider adopting a policy that they will not oppose one another in Pro Se Clinic matters. Due to the separation between CLC and the Pro Se Clinic as operated, Pro Se Clinic attorneys would not be considered members of the CLC firm. The Pro Se Clinic does not have access to CLC files and vice versa. They are located in separate offices. Pro Se Clinic attorneys and CLC attorneys do not act as co-counsel in any matter.

4. Tennessee Formal Ethics Opinion 85-F-83, cites with approval a statement in ABA Informal Opinion 1444:

Extensive undisclosed participation by a lawyer . . . that permits the litigant falsely to appear as being without substantial professional assistance is improper.

The opinion was under the Code of Professional Conduct, now replaced by the Rules of Professional Conduct, but the rationale remains the same. Under RPC 8.4 an attorney may not engage in conduct prejudicial to the administration of justice nor engage in dishonest or deceitful conduct.

Delaware State Bar Ethics Opinion 1994-2 states:

A litigant may receive some advantages, in the form of more lenient treatment concerning procedural matters, for example, if the tribunal perceives the litigant to be unrepresented.

The opinion concluded that an attorney preparing court filed documents for pro se litigants should disclose participation by letter to the court and opposing counsel.

In Florida Bar Opinion 79-7 Reconsideration (February 15, 2000), the committee concluded “that pleadings or other papers prepared by an attorney and filed with the courton behalf of a pro se litigant must indicate, ‘Prepared with Assistance of Counsel.’”

Similar recommendations were made by Alaska Bar Opinion 93-1, New York City Bar Formal Opinion 1987-2 and Virginia Legal Ethics Opinion 1127. It is our opinion that notifying the court that counsel has assisted the pro se litigant without expectation that counsel will appear and represent the client in the manner described by the inquiring attorneys is sufficient. The phrase “Prepared with Assistance of Counsel” is recommended for inclusion on such pleadings in a prominent manner.

This 17th day of June, 2005.

ETHICS COMMITTEE:

Fred B. Hunt, Jr., Chair

Gail Carr Williams

John J. Hollins, Jr.

Roger A. Maness

APPROVED AND ADOPTED BY THE BOARD