|
 "Cali!"
exclaimed the unmistakable voice of Polly Person, a Riverside sole
practitioner who had recently consulted ethics maven California Joan
about ethical issues in expanding her family law practice to include
unbundled legal services serving as a lawyer scrivener. "I can't
believe a whole month has gone by without talking with you again about
how to implement limited legal services as a lawyer scrivener. Can you
tell me what risk management principles I should consider in providing
these services?"
"Polly, let me begin with some generalities.
Offering unbundled or limited legal services is just like expanding
your practice to include a new field of substantive law. In both
areas, important risk management tools are to prepare substantively to
offer the particular legal services, to prepare in advance any forms
that you might need to provide the services, to formulate guidelines
or office procedures which will help keep you from straying into
services that you do not want to offer or perform and to build a
routine which will assist you in maintaining quality control of your
services," Cali started.
"What is the claims experience in the insurance
industry regarding un-bundled legal services?" asked Polly.
"My friends in the insurance industry advise me
that there have been few if any claims arising solely from delivering
unbundled legal services. Be cautious, though. Remember that the
insurance industry does not distinguish between limited and
'full-service' representation.
"Moreover, while providing limited legal
services has become increasingly common, there has been insufficient
time to develop particularized claims experience in this area. The
insurance industry has expressed concerns that lawyers providing
unbundled services may be held liable for acts and omissions which lie
outside the agreed upon scope of representation. (Report on Limited
Scope Legal Assistance with Initial Recommendations, prepared by the
Limited Representation Committee of the California Commission on
Access to Justice, October 2001, pp. 23-25 and 42.)
"Gosh Cali, how can we manage the risk if we
don't have claims experience?" asked Polly with some alarm.
A little guidance
"We are not shooting completely in the dark. We
do have a handful of California appellate published decisions and
ethics opinions which give guidance identifying areas of risk in
failing to limit the scope of representation properly. We also have
some cases discussing risks as a lawyer scrivener and still others
discussing risks in failing to make appropriate disclosures in the
representation of joint clients for a single purpose," Cali
answered.
"Can I ethically limit the scope of my legal
services to serving as a scrivener in preparing a marital settlement
agreement?" Polly queried.
"Yes," answered Cali. "There is nothing per
se unethical about an attorney limiting a professional engagement to
one or more unbundled services. (Los Angeles County Bar Association
ethics opinions 502 and 483.) As we discussed last time, there are
three California cases generally supportive of an attorney's legal
services as a scrivener, provided that the clients consent after
adequate disclosure. (Marriage of Egedi; (2001) 88 Cal.App.4th 17, 105
Cal.Rptr.2d 518. Blevin v. Mayfield
(1961) 189 Cal.App.2d649, 11 Cal. Rptr.882; and Buehler v.
Sbardellati (1995) 34 CalApp.4th 1527, 41 Cal.Rptr.2d 104.)"
Polly then asked, "How do I limit the scope of
my legal services in preparing a marital settlement agreement to the
lawyer scrivener role?"
"Nichols v. Keller (1993) 15 Cal.App.4th 1672,
1687 stated that 'if counsel elects to limit or prescribe his
representation of the client . . . then counsel must make such
limitations in representation very clear to his client.' Ethics
opinions have suggested that the client must be fully informed about
and expressly consent to the limited scope of the representation. Any
limitations on work to be performed should be stated explicitly and
completely. (Los Angeles County Bar Association formal ethics opinions
483 and 502.)
"Does the agreement limiting the scope of the
legal services have to be in writing or can it be oral?" asked
Polly.
"There is no legal requirement that it be in
writing. However, if the fee agreement requires a writing pursuant to
Business & Pro-fessions Code §6148, then the services to be
performed by the lawyer must also be in writing along with the
client's responsibilities," Cali responded.
(Bus. & Prof. Code §6148(a)(2) & (3); L.A. Co. Bar
Ass'n. Form. Op. 502.)
"Also," Cali continued, "if you are going
to perform scrivener services for two or more individuals and are
required to make written disclosures because of potential or actual
conflicts between the parties, describing the limitations of the
scrivener role should be part of the written disclosures. (Rules
3-310(A), (C)(1) & (2), Rls. Prof. Cond.)
Put it in writing
"There are two important reasons why, even if
not required, that the scope of services should be in writing:
"First, to ensure that the scope of your
scrivener role is clear, explicitly stated and that the client is
fully and completely informed and expressly consents to the
limitations. (See Nichols v. Keller, supra; L.A. Co. Bar Ass'n.
Form. Op. 502.) Even if you have the best oral communications skills
in the universe, (1) a writing assists in client comprehension because
it repeats what you said about limitations on your representation; (2)
rereading gives the client opportunity for further reflection and
clarification with you; and (3) a writing provides subsequent memory
support for the client.
"Second, as a risk management tool, a writing
(1) focuses you upon clarifying the specific
legal tasks you want to perform for the client; (2) focuses you
upon identification of the limitations upon your representation; (3)
will assist you in remembering the limitations on your scope so that
you will not stray in performing services outside the scope; and (4)
should a dispute arise over the limitations or scope of your services,
will provide proof to the client and third parties about the nature
and extent of your agreement with the client to limit the scope,"
Cali finished.
"How should I structure a written 'scope of
services' provision?" Polly asked.
"There are generally two structures lawyers
use. First, some lawyers providing unbundled legal services prefer to
have a checklist defining and outlining specific tasks which the
lawyer will perform and those for which the client will have
responsibility. A very fine model for this structure is set forth in A
Client's Guide to Limited Legal Services by Sue M. Talia (1997 San
Ramon: Nexus Publishing). Others prefer to set forth the limited scope
of their services in traditional prose, particularly when they are
limiting their services to one particular area of the law, to a
particular remedy (e.g., workers' compensation) or task (e.g.,
serving as a scrivener to prepare the legal documentation arising out
of a business transaction)," answered Cali.
Outside the scope
"If I limit the scope of my legal services to a
client, am I responsible for performing any services outside of the
scope of those services?" Polly asked.
"Yes! A lawyer has a further duty to alert the
client to legal problems which are reasonably apparent, even though
they fall outside the scope of the retention. This duty does not
extend to remote or tenuous alternatives, but rather to those that are
reasonably apparent.
"The public policy underlying this duty is
that, as between the lay client and the attorney, the latter is more
qualified to recognize and analyze the client's legal needs. While
the lawyer is not required to represent the client on matters outside
the scope, the lawyer should inform the client of the limitations of
the lawyer's representation and of the possible need for other
counsel," Cali explained. (Nichols v. Keller, supra, 15 Cal.App. 4th
at pp. 1683-1684; Davis v. Damrell (1981) 119 Cal.App.3d 883, 889, 174
Cal.Rptr. 257.)
"Can you give me examples of how this would
come up in a business transaction or family law matter?" asked
Polly.
"Typically, a marital settlement agreement in a
family law matter may have tax or estate planning consequences to the
parties. The form of the business operation (e.g., an S corporation or
a limited partnership) may have tax consequences to individual
partners.
"The lawyer is not required to advise about tax
estate planning matters, but is required to flag the potential
consequence for the client and alert the client to the possible need
for other counsel," responded Cali.
"So, I should not only define the scope of my
legal services, but also should identify any other legal services that
appear to be implicated by the client's matter, outside of that
scope, and suggest that they seek counsel on those matters," Polly
said.
"Exactly!" Cali responded. "In providing
scrivener services, consider the following checklist of issues to
integrate into your scope and 'outside the scope' provisions:
"That the parties have already come to an agreement regarding the
terms of a dispute or proposed enterprise; the date upon which they
came to that agreement and that the lawyer had no part in the
negotiation.
"That the lawyer's services would be limited to memorializing the
parties' agreement in a legal document and encompass only the
following tasks: (a) setting forth the terms that had already been
agreed to; and (b) adding any standard legal provisions normally found
in the type of agreement requested (e.g., marital settlement
agreement, general partnership).
"That the lawyer would not advise the parties about the consequences
the terms would have upon their personal individual interests and that
they were encouraged to seek independent counsel to advise them of
those consequences.
"That the lawyer would not advise the parties jointly about the pros
and cons of their agreement and would not negotiate any further terms
or provisions of the agreement.
"Any areas of law which might be implicated by the agreement about
which the lawyer would not advise and which the parties should seek
independent counsel. (See Marriage of Egedi (2001) 88 Cal. App. 4th
17, 20-24, 105 Cal.Rptr.2d 518.)
"Assuming that I represent two or more people
in providing services as a scrivener, what kinds of written
disclosures should I give?" asked Polly.
"Let's start with the rules," Cali began.
"You cannot represent two or more clients on a common matter in
which the interests of the clients potentially or actually conflict
without the informed written consent of all clients after written
disclosure. (Rules 3-310(C)(1) & (2), Rls. Prof. Cond.)
"Disclosure requires the lawyer to inform a
client of the relevant circumstances and the actual and reasonably
foreseeable adverse consequences to the client. Informed written
consent is defined as the client's written agreement to the
representation following written disclosure."
(Rule 3-310(A)(1) & (2), Rls. Prof. Cond.)
Typical conflicts
"Are there typical conflicts which arise
between jointly represented clients?" asked Polly.
"Generally, six conflict situations
may potentially arise or may already actually exist between the
jointly represented clients:
"1. Inconsistent expectations of
confidentiality in which one client expects the lawyer not to disclose
information the lawyer would be required to impart to the other
client.
"2. Conflicting instructions from the clients
in which the lawyer cannot follow one client's instruction without
violating another client's instructions.
"3. Conflicting objectives of the clients in
which the lawyer cannot effectively advance one client's objective
without detrimentally affecting another client's objective.
"4. Advocacy of antagonistic positions of the
clients in which the lawyer is called upon to advocate both sides of
the negotiation or a legal position at the same time.
"5. A pre-existing relationship with one client
that would adversely affect the lawyer's independent judgment on
behalf of the other client.
"6. Conflicting demands by the clients for the
original file once the representation has ended.
(California State Bar Standing Committee on
Professional Responsibility and Conduct formal opinion no. 1999-153
and authorities cited therein.)
Other issues to consider
"Joint clients can have disputes about aggregate settlements,
including what the total amount should be or disputes about each
client's proportional share. (Rule 3-310(D), Rls. Prof. Cond.)
"Where joint clients are contributing to their joint lawyers'
legal fees and/or costs, potential or actual conflicts can arise
concerning whether clients should share equally or proportionally in
the payments of fees and costs, and if proportionally, the basis for
proportional division (e.g., based upon damage claims or awards, time
represented, extent of injury, etc.).
"In the event of future arbitration or litigation between the
parties and one or both parties desired the lawyer to give evidence,
the attorney-client privilege would be waived. (Evid. Code, §962;
Marriage of Egedi (2001) 88 Cal.App.4th 17, 24, 105 Cal.Rptr.2d 518.)
"If one of your clients is an organization, you should ensure that
the appropriate disinterested agent consents on behalf of the
organization. (Rule 3-600, Rls. Prof. Cond.)
"There may be actual or potential conflicts which are unique to your
prospective clients' situation,
which you should also include.
"In the initial or subsequent interview, the
lawyer should review each of these areas of potential conflict with
each client to determine whether any conflicts in these areas are
actually present or are only potential. Actual or potential conflicts
should then be discussed in writing in terms that can be understood by
the client. Many lawyers use the above list as a checklist for both
the client discussion and as a template for their written
disclosures."
"Where can I find sample conflict disclosures,
Cali?" Polly asked.
"The Rutter Group's California Practice Guide
- Professional Responsibility, at the end of Chapter 4 has conflict
of interest forms," she said.
Conflict disclosures
"Are there any other specific disclosures that
I should make?" Polly asked.
"Yes! Marriage of Egedi [supra, 88 Cal. App.
4th at p. 24, fn 5] suggested that if a lawyer believed that the
parties' agreement is grossly unfair or against public policy, the
lawyer should decline to
act as a scrivener. This would be a good disclosure to add.
"In holding that the agreement was enforceable,
one of the favorable factors was the lawyer's recitation that the
agreement had been entered into voluntarily, free from duress, fraud,
undue influence, coercion or misrepresentation of any kind and that
the parties were advised in writing to seek independent legal counsel
and advice regarding the written disclosure and consent to joint
representation and the written agreement prepared by the lawyer.
(Marriage of Egedi, supra, 88 Cal. App. 4th at pp. 20, 21.) You might
consider adding these concepts to your disclosure or even in any
agreement you prepare for joint clients," Cali said.
"Also, remember that if the clients ask you to
provide other services, you should memorialize the expanded scope of
representation as well as any limitations, in writing, and evaluate
whether you need a further disclosure and consent under the conflict
rules," she concluded.
"Cali, you have given me a lot of pointers I
need to think about in preparing forms and procedures for providing
unbundled legal services as a lawyer scrivener. I'm going to take
these general concepts and apply them to my particular practice. While
it is going to be some work to get everything ready, I know I will
provide better services if I am prepared with forms and procedures to
clarify the limitations of my representation to the client and I'll
sleep better at night knowing that I have taken steps to manage the
risk of providing unbundled legal services,"
Polly said.
"Good luck, Polly, and be careful out there!"
Cali said as her friend hung up.
© 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. |
