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 As
California Joan was savoring her double mocha latte, the phone jarred
her back to reality. It was Polly Person, a sole practitioner in
Riverside who consulted with Cali from time to time about ethics
issues which arose in her family law practice.
"Cali," Polly started, "I need to consult
with you. In the 20 years I have been practicing family law, the
conventional wisdom has been that dual representation of husband and
wife in family law matters is ill advised and a dangerous malpractice
trap!" (Hoogoboom & King, California Practice Guide (2000)
Family Law, ch.1, p. 1-25.)
"Except in rare circumstances, I have followed
that wisdom.
"Lately, more and more couples have requested
that I jointly represent them in preparing marital settlement
agreements or other agreements necessary to obtain their dissolutions
in which they are representing themselves. Some of them cannot afford
an attorney to handle the entire dissolution and some of them believe
that they can agree amicably about terms regarding support
obligations, child custody and visitation and property division mostly
without lawyers." (Hoogoboom & King, California Practice Guide
(2000) Family Law, supra, §1:80.)
"Unbundling of legal services has become such a
big focus of the family law bench and bar in improving access to the
courts that I thought I would add limited legal service areas to my
practice," Polly continued.
"What the heck are 'unbundled legal
services?'" Cali interjected.
Limited representation
"'Unbundling,' 'discrete task
representation,' 'limited representation,' and 'partial
representation' are interchangeable terms describing an agreement
between an attorney and a prospective client that the scope of the
legal services will be limited to the defined tasks upon which the
prospective client and the attorney mutually agree.
"Generally, there are three types of unbundled
or limited services offered: (1) advice and counsel; (2) limited court
or administrative appearances; or (3) assistance with documents and
pleadings." (Report on Limited Scope Legal Assistance with
Preliminary Recommendations prepared by the Limited Representation
Committee of the California Commission on Access to Justice, Oct.
2001, p. 2.)
"Well, gosh, I guess I have been offering
unbundled services without knowing it. From time to time, I limit the
scope of my legal services to some of my clients to certain tasks!"
exclaimed Cali.
"Exactly," continued Polly. "I would like
to develop a new area of my practice: the limited representation of
couples who have agreed upon the essential terms of a marital
settlement agreement and need a lawyer to put the agreement into the
proper legal form. But before I do, I need to explore the ethical and
risk management issues involved."
"The good news is that there is no California
professional standard which prohibits lawyers from limiting the scope
of their representation of clients. However, there are several forms
of limited joint representation, each with slightly different ethical
duties and risks:
"First, joint representation of both parties in
an 'uncontested dissolution' provided you obtain the written
consent after appropriate written disclosure of the potential
conflicts. (Klemm v.
Superior Ct. (1977) 75 Cal.App.3d 893, 900, 142 Cal.Rptr.509; Rule
3-310(C)(1) and (2), Rls. Prof. Cond.)
"Second, acting as an intermediary in seeking
to establish or adjust a relationship between clients on an amicable
and mutually advantageous basis. (While California's rules are
silent on this type of representation, pursuant to rule 1-100(A), ABA
Model Rule of Professional Conduct 2.2 may be consulted for guidance.)
"Third, you could act as a lawyer-scrivener.
(Marriage of Egedi (2001)
88 Cal.App.4th 17, 105
Cal.Rptr.2d 518.)
"Let's explore the 'scrivener' role more.
Historically, when illiteracy rates were higher, lawyers often served
as professional or public writers or scribes, wholly apart from
providing legal services. (Restatement of the Law Third (2001) The Law
Gov-erning Lawyers, §72, comment c, p. 552.) Recent legislation has
authorized non-lawyer document assistants to assist consumers in
filling out legal forms (Bus. & Prof. Code, §§6400, et seq)."
"Is a lawyer scrivener something different?"
asked Polly.
"Well, I have yet to find a precise definition
for a lawyer scrivener under California law. I have found only three
published California opinions involving attorneys acting as
scriveners." (Marriage of Egedi,
cited above; Blevin v. Mayfield (1961)
189 Cal. App.2d 649, 11 Cal.Rptr. 882; and Buehler v. Sbardellati
(1995) 34 CalApp.4th 1527, 41 Cal.Rptr.2d 104.)
Marriage of Egedi arose out of a husband's
claim that a marital settlement agreement was unenforceable because
the couple's joint lawyer had a conflict of interest. Husband and
Wife had filed a joint petition for dissolution of marriage in which
they represented themselves. They had a short-term marriage with no
children; the only issues were property division, debt allocation and
spousal support.
They asked Lawyer to prepare a marital settlement
agreement in the proper legal form after they had agreed to all of the
essential terms. Lawyer,
who had previously represented each in unrelated matters, at first
refused.
At their continued insistence, Lawyer agreed to
prepare it, after making a written disclosure and obtaining the
written consent of both. (Id.,
19-21.)
The Court reversed the trial court invalidation
of the marital settlement agreement based upon the lawyer's alleged
conflict of interest because the trial court had found that: (1) there
was no fraud, duress, undue influence or other inequity in the
agreement; (2) the lawyer was acting in the role of a scrivener; (3)
the lawyer's disclosure was sufficient for the circumstances; and
(4) the parties therefore gave their informed consent to the joint
scrivener representation. (Id., at pp. 22-24.)
Blevin v. Mayfield was an action to cancel a deed
from Decedent to Buyer, based in part on the alleged conflict of
interest of the lawyer who prepared the deed transferring the
property. Nine days before his death at 86, Decedent contacted Buyer
and offered to sell her 80 acres of his land for $5000. Decedent had
close familial ties with Buyer, who had lived with him during her
formative years and was a niece by marriage. He acknowledged that the
value of the property was higher but said he wanted to give the
property to her and her husband so that their farming operation would
succeed.
Decedent repeated this to a personal friend, Mr.
Koeln. Decedent then retained Lawyer to prepare the necessary
documents to complete the transaction. At that time, Buyer was
Lawyer's client and Lawyer had previously represented Decedent in
much of his legal work. Prior to offering the documents to Decedent,
who was accompanied by Mr. Koeln, for his signature to consummate the
sale, Lawyer satisfied himself that Decedent was competent; that he
was aware that the property value was higher than the consideration
paid and that he still wanted to go through with the sale. (Id., at
pp. 650-651.)
Scrivener services only
The Court upheld the transfer of the property and
that there was no conflict of interest. The Court observed that
agreement had already been reached between Decedent and Buyer when
Lawyer was retained and therefore, Lawyer's only services were those
of a scrivener. (Id., p. 652.)
Buehler v. Sbardellati arose out of a legal
malpractice action in which the jury found that the lawyer was not
negligent. Doctor, who was a sophisticated investor in real estate,
determined to form a limited partnership (BD Ltd.) in which he would
be a limited partner, with Parrish to purchase Apartment Complex in
Texas. Doctor and Parrish
retained Lawyer, telling him that they did not want him to make any
decisions regarding the partnership agreement but just to ensure that
the agreement was in conformance with California law.
Lawyer, whose firm represented both Doctor and
Parrish individually in other matters, agreed to document the
agreement in a written partnership agreement but said that if Doctor
and Parrish became adverse, he could not represent them both or
represent either one against the other. After obtaining their oral
consent after oral disclosures (this was prior to the 1989 adoption of
rule 3-310), Lawyer agreed to represent the partnership and documented
the limited partnership in conformity with California law.
Prior to the completion of the purchase of
Apartment Complex, Doctor agreed to sign a personal guarantee which he
knew was in excess of his contribution as a limited partner to the
partnership. BD Ltd. defaulted on its loan, the lender sued Doctor on
his personal guarantee and Doctor was held liable for the full amount
of BD Ltd.'s debt, more than $700,000.
(Id., 1533-1536.)
The Court held that there was no conflict of
interest in Lawyer's representation of BD Ltd. concurrently with his
representation of Doctor and Parrish in separate matters, where the
scope of the representation was limited to memorializing the two
clients' previous agreement under California limited partnership
law. (Id., at pp.
1537-1540.) While the Court did not specifically label these services
as those of a "scrivener," the description of the services implies
that role.
"What's the difference between a lawyer
scrivener and a lawyer who engages in joint representation of multiple
parties?" asked Polly.
"An important joint representation case,
Lessing v. Gibbons (1935) 6 Cal.App.2d 598, 599 45 P.2d 258, examined
Entertainment Lawyer's joint representation of motion picture
actress Delores Del Rio and Director regarding an agreement with
United Artists for production of Del Rio's future movies and whether
he had a conflict of interest precluding Del Rio's payment of past
due fees.
"The Court concluded that joint representation
involved potential or actual conflicts of interest but that there is
no prohibition of joint representation with full disclosure and
consent of the parties, which the Court found to have occurred. (Id.,
pp. 605-606.)
"The Lessing Court described the factors
commonly found in joint representation of multiple parties as follows:
"First, a common purpose or general objective
mutually agreed upon by all of the parties to the joint
representation. (Id., P. 604.)
"Second, the lawyer's preparation of
documents, representation or provision of legal services to effectuate
the parties' common purpose or objective. (Id., p. 605.)
"Third, legal advice to each party or the group
as a whole necessary for their legal protection or necessary to make
an informed and intelligent decision. (Id., pp. 605-606.)
"By contrast, the few cases that discuss lawyer
scriveners suggest that the lawyer scrivener's role involves:
"First, representation of two or more parties
that not only have a common purpose, goal or objective, but also must
have negotiated, without the lawyer, and agreed to all of the
essential deal points or provisions of a transaction or venture.
(Marriage of Egedi, supra, at p. 20-21, 24;
Blevin v. Mayfield, supra, 189 Cal.App.2d at pp. 650-651;
Buehler v. Sbardellati, supra, 34 CalApp.4th at pp.1533-1536.)
"Second, the scope of the lawyer's engagement
by the client and the services provided is limited to giving legal
structure to the agreement previously reached. (Marriage of Egedi,
supra, at p.20-21, 24; Blevin v. Mayfield, supra, at pp. 650-651 ;
Buehler v. Sbardellati, supra, at pp.1533-1536.)
"Third, the lawyer does not negotiate or
facilitate agreement between the parties and does not give legal
advice about the pros and cons of the deal points or the agreement to
the clients, because that would defeat the very purpose for which the
parties sought the lawyer's services as scrivener. (Marriage of
Egedi, supra, at p. 24.) In situations where the parties' agreement
is so grossly unfair or against public policy, the attorney should
decline to act as a scrivener. (Id.,
at fn. 5.)
"Fourth, if one of the parties seeks to obtain
counsel separately or discuss the matter separately, the lawyer
scrivener should decline the contact," Cali finished. (Id., at p.
20; Blevin v. Mayfield, supra, at pp. 650-651;
Buehler v. Sbardellati, supra, at pp.1533-1536.)
"Whoops! Cali, I have to go to a court hearing.
Can we continue this discussion?" Polly asked.
"Sure," responded Cali. "In our next
conference, we'll discuss the ethical principles in implementing
limited legal services as a lawyer scrivener."
[Next month: Part Two will discuss the ethical
principles and risk management tips in implementing limited legal
services as a lawyer scrivener.]
© 2001 and 2002. All rights reserved by Ellen R. Peck. A sole
practitioner in Escondido, Peck limits her practice to lawyer law and
lawyer professional responsibilities and ethics. She is a co-author of the "The Rutter Group California
Practice Guide - Professional
Responsibility" and a visiting professor on professional
responsibility at Concord University School of Law.
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