Taking It to the Limit

Published April 27, 2010

The Great Recession continues to have a major impact on the legal profession in this country – especially on the nation’s one million-plus lawyers who are sole practitioners or members of small firms. These lawyers generally represent individual clients and small businesses in personal injury, family disputes, criminal defense and personal debtor claims that tend to pay less. As clients are fewer and payments are slower after two-plus years of hard times, the financial and economic difficulties such lawyers face have been substantial.

Now there may be a new way to cope. According to the ABA Journal, the chief justices of the New Hampshire and California state supreme courts, noting the rise in pro se representation by people who cannot afford a lawyer, have advocated limited scope representation. (Click here for article). The justices say 41 states have adopted an ABA model rule or related variations to allow lawyers to take only a part of a case. That could mean a person or business hiring a lawyer to help them fill out forms, prepare documents, coach them on how to present in court, or to represent them in court for one or two hearings.

The justices disagree with lawyers who see this as undermining the value of the legal profession. In a New York Times column, they wrote: “Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved, …[b]ut for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage.”

Giving representation this way to people of limited means also gives business to lawyers who otherwise would not have it. It recognizes that lawyers are in business to make a living while helping people with their personal issues. It draws a distinction between providing services at a reasonable fee, and providing pro bono services voluntarily without charge. Lawyers have a professional obligation to provide legal services, not just to the clients who can pay for them, but to the people who need but cannot afford them. Limited scope representation occupies a middle ground between the two. If the lawyer’s decision is to charge for a limited scope representation, it would seem a good idea to get the money in advance of when advice or services are rendered. Otherwise the client may exert subtle or overt pressure to ultimately make it a pro bono matter. If clients are told the cost beforehand, the decision to retain the lawyer is theirs. As the justices point out, this may be the best way to provide affordable legal service to those who are not indigent – while at the same time giving lawyers paying work that may even lead to a full-time client later on.

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Audience type: Administrators, Associates, Large Law Firms, Small Law Firms, Sole Practitioners