Written by Michele Struffolino
Even with the American Bar Association’s recognition in their Basic Principles of the Right to Counsel in Civil Cases that full representation is the best way to provide fair and equal access to justice, the current economic climate is likely to increase the number of individuals who cannot afford full representation. These low and moderate income litigants are left with two options: proceed pro se or obtain whatever representation their money can buy. Choosing the latter can cause more harm than good and attorneys should be wary of jumping on the unbundled bandwagon when a potential client presents family law issues that will require more than perfunctory court involvement.
Unbundled legal representation is nothing new to family law attorneys. The ability to hire an attorney to perform only one or a few of the tasks typically involved in full representation has been the backbone of mediation, conciliation, and collaborative lawyering. Many family law matters, however, cannot be resolved without ongoing court involvement. Domestic relations matters often involve high emotion, conflict, and complex legal issues. The litigants in these cases cannot reach a fair resolution without the assistance of counsel. Unfortunately, many cannot afford the representation they need.
Assistance with family matters was found by the Legal Needs and Civil Justice Survey to be among the highest legal needs of low and moderate income households. This need, along with the soaring costs of legal representation and drastic funding cuts in low or no cost legal aid, led to the “pro se phenomenon” which has been plaguing family law courts since the turn of the millennium. The increased number of pro se litigants in family courts frustrates even the most basic avenues for obtaining access to justice: Court personnel are burdened with answering questions and dodging unauthorized practice of law issues; judges are losing control of their dockets because unprepared litigants cause frequent delays; and the family law attorney with a paying client is often face to face with a pro se opponent. The litigants, however, suffer the most; their cases are often resolved on the basis of a procedural technicality rather than on a fair application of substantive law.
It is here that the mixed messages begin. Providing at least some legal representation to litigants in contested matters appeared to be a viable solution. In 2002, although limited representation was already allowed in most jurisdictions, Rule 1.2(c) of the Model Rules of Professional Conduct was amended to explicitly allow attorneys to provide limited representation. This change, assisted by changes to the ethical and procedural rules that apply to family matters across the country, Unbundling Rules , encouraged the use of limited representation in contested family matters. A careful analysis of this rule and recent ABA proposals, however, seem to discourage offering anything but full representation.
Although Model Rule 1.2 does explicitly allow attorneys to provide limited representation, it can only be done if doing so is “reasonable under the circumstances” and if the client gives “informed consent.” Unfortunately, little guidance is available to the domestic relations attorney struggling with interpreting these terms. The example of what is “reasonable” provided in the Comment to Rule 1.2 is a situation that few attorneys would ethically struggle with: Providing a brief telephone consultation for a client with an uncomplicated legal issue may be reasonable. While this example provides little guidance because it is too basic, the Comment to Rule 1.0 that defines “informed consent” includes vague terms that require further interpretation or analysis. The comment suggests that in order to obtain “informed consent” from a client, the attorney should inform the client of the “material advantages and disadvantages” of limited representation and to discuss other options available. These comments provide no help to the family law attorney facing an emotional and confused client during an initial intake.
Adding to the confusion are inconsistent conclusions regarding the appropriateness of using unbundled legal services in litigation. In 2009, the ABA Standing Committee on the Delivery of Legal Services commented that pro se litigants can “optimize their outcomes” if they have legal representation in court even if it is not for “the entire litigation, but only for a limited purpose.” In 2010 however, the following statement was included in the definition of limited representation in the Model Access Act: “Limited representation may only be provided to the extent permitted by Rule 1.2(c) . . . and when the representation is sufficient to afford fair and equal access to justice . . . .” (Emphasis added).
An analysis of the situation should lead the family law attorney to conclude that limited representation is not appropriate in contested domestic relations cases. Even worse, an incomplete analysis can lead to inadequate or ineffective representation. The low or moderate income litigant is again faced with only two options: go it alone or don’t go at all.