What judges need to know about unbundling What is unbundling Limited scope representation unbundling is occurs when an attorney and a client agree that the attorney will perform some but not all aspects of a legal ID: 648803
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Slide1
Limited scope representation
What judges need to know
about
unbundling Slide2
What is unbundling?
Limited scope representation (unbundling) is occurs when
an attorney and a client agree that the attorney will perform some, but not all, aspects of a legal
matter
.
Slide3
Types of Unbundling
Discrete Task or Ghostwriting: when an attorney provides consultation and legal advice, document review, or ghostwriting (drafting). Colo. RPC 1.2(c) C.R.C.P.
11 and
C.R.C.P.
311
Limited Appearance:
when an attorney
enters
an appearance on behalf of a client in court or at mediation.
C.R.C.P.
121
Slide4
Discipline or Malpractice
Unbundling not seen as problem:Office of Attorney Regulation
National
Organization of Bar Counsel (NOBC
).
Malpractice
CarriersSlide5
Need for unbundling burden on judges and court staff
Number self-represented litigants (FY 2015)
69,951
parties in DR cases in
CO
75
%
parties did not have attorney enter appearance
Respondents in
DR, District Civil, and County
Civil
89%
parties did not have attorney enter appearanceSlide6
Need for unbundling burden on judges and court staff
Self-represented litigantsUniformed
Unprepared
Overwhelmed
Judges and court staff (including
sherlocks
) can’t provide legal adviceSlide7
Need for Unbundling For attorneys and clients
Cost for full-service legal representationGrowing demand by the client for control over their legal issues
Changing practice of lawSlide8
Rules
Colo. RPC 1.2(c) and Colo. RPC 1.0(e)
= permission to unbundle
C.R.C.P
. 11(b) and 311(b
): Pleadings
C.R.C.P
. 121, § 1-1(5
): Court appearance
C.A.R. 5(e
): Colorado appellate rule
D.C.Colo.Latty
R2 and R5: US District CourtSlide9
Colorado rules of professional conduct
Colo. RPC 1.2(c)
Permits
limited scope representation
Reasonable
under the circumstances.
Informed
consent
of client.
Agreement should be in
writing
,
signed by both parties.Slide10
Informed consent
"Informed consent"
agreement
by a person to a proposed course of conduct
after
the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Colo. RPC 1.0 (e) Slide11
Drafting Pleadings (
Ghostwriting) Ghostwritten
pleadings must comply with C.R.C.P. 11(b) and 311(b):
Must include name, address, telephone
#
and bar
#
Certify
that the pleading or paper is:
Well grounded in fact based on reasonable inquiry.
Warranted by existing law or a good faith argument for extension.
Is
not
made for an improper purpose
, or to
harass, delay,
etc.
Exception
for pre-printed
judicial (JDF) forms
Not an
entry of
appearanceSlide12
Colorado rules of civil procedure 121 §1-1(5)
Limited
representation of a pro se party in a court
proceeding at the request
AND
with consent of client.
File notice
of limited appearance
prior to or simultaneous with
proceeding
. (JDF 630, 1334/1335)
Attorneys
role terminates
without leave of court
and upon filing a notice of completion
.
(JDF
632, 642, 1336)Slide13
Colorado rules of professional conduct
Limiting scope ≠ limiting obligations under Rules of Professional Conduct or Rules of Civil Procedure
Limited scope
=
Attorney/client relationship Slide14
Colorado appellate rule 5(e)
C.A.R. 5(e): limited scope representation inthe
Colorado Court of Appeals and Colorado Supreme
Court:
request
and with the consent
of a pro se
party,
terminates
without the necessity of leave of court
,
upon
the attorney filing a notice of completion of limited appearance. Slide15
United states district courtfor the district of
Colorado D.C.Colo.LAttyR5 (a)(2
):
Unbundling is allowed when
there is a
court order granting permission
.
the scope of limited representation must be defined in motion and any change to scope must be approved again by court.
Unbundling lawyer
must file a motion to withdraw
after completing limited representationSlide16
United States District court for the district of Colorado
D.C.Colo.LAttyR5 (a
)(3): entry of appearance or initial pleading must contain:
the identity of the party for whom the appearance is made;
the
firm name, office address, telephone number, and primary CM/ECF e-mail address of the attorney; and
the
certification of the attorney that the attorney is a member in good standing of the bar of this court
.Slide17
Judicial Leadership on unbundling
Securing access to justice is a fundamental goal and responsibility of judicial leadership. Judicial support is absolutely essential for unbundled legal services to take hold.
Unbundling has been increasingly used and accepted in the last several decades.
Unbundling
can increase the number of prepared litigants and result in more available docket, court staff, and judge time.Slide18
Judicial Leadership on Unbundling
Colorado Supreme Court supports unbundling
A
ssure lawyers that the court will allow lawyers to withdraw after completion of limited scope representation.
Refer lawyers to the court approved forms
Educate
the public about the availability of unbundling
.
Educate court staff about unbundlingSlide19
Judicial Leadership on Unbundling
Work with CBA’s
Modern Law Practice Initiative to
schedule an unbundling presentation in your area, including one specifically geared to young lawyers.
Work with local bar associations and local access to justice committees to develop
lists
of lawyers offering unbundled
services, including encouraging use of CBA’s Find-a-Lawyer.
Encourage self-represented
l
itigant
c
oordinators
(
sherlocks
) and family court facilitators,
when appropriate, to refer self-represented litigants to lawyers providing unbundled services
.Slide20
Tips for judges from judges
Communication by judgeWith pro se party?With limited scope attorney?Judge must clarify scope of limited representation with pro se party and attorney
Judge must ensure notices of hearing, decisions, etc., are sent to correct
partySlide21
Tips for judges from judges
Communication with attorney providing full representationEnsure he or she knows scope of limited representationOpposing attorney must communicate with limited scope attorney on issues of limited representationOpposing attorney must communicate with pro se attorney regarding other issues.Slide22
Discussion
What is going well with unbundling?What is not going well with unbundling?