RI-347

April 23, 2010

SYLLABUS

So long as he or she complies with the Michigan Rules of Professional Conduct and other law, a lawyer may, without appearing in a proceeding or otherwise disclosing or ensuring the disclosure of the lawyer's assistance to the court or to other counsel and other parties, assist a pro se litigant by giving advice on the content and format of documents to be filed with the court, including pleadings, by drafting those documents for the litigant, by giving advice about what to do in court or any combination of these.

TEXT

A lawyer's performing only specific, limited tasks, instead of handling all aspects of a matter, is often referred to as the "unbundling" of legal services. Depending upon the context, the availability of unbundled legal services allows clients to limit their legal costs by coming to a lawyer for specific advice and paying for only that, without having to pay the lawyer the added expense of drafting an agreement, conducting negotiations, filing an appearance, going to court, or preparing additional pleadings.

A Michigan lawyer has inquired about unbundled legal services, seeking an opinion as to whether it is ethical for a lawyer, without appearing in a proceeding or otherwise disclosing or ensuring the disclosure of the lawyer's assistance to the tribunal, to assist a pro se litigant by giving advice on the content and format of documents to be filed with the court, including pleadings, by drafting those documents for the litigant, or by giving advice about what to do in court.

This inquiry raises three issues:

1. May a lawyer deliver "unbundled" legal services to a pro se litigant?
2. If so, must the assistance of the lawyer be disclosed to the tribunal, other parties and opposing counsel?
3. If so, may the lawyer disclose the fact of the assistance without the express consent of the assisted pro se litigant?

Our first consideration is whether the Michigan Rules of Professional Conduct permit unbundling. MRPC Rule 1.2(b) provides that a lawyer may limit the objectives of the representation if the client consents after consultation.[1] Comment to that Rule provides:

The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client . . . . The terms upon which representation is undertaken may exclude specific objectives or means . . . .

Unbundled legal services are common in out-of-court work. Lawyers frequently draft letters and agreements and coach their clients in connection with administrative applications and contract negotiations, and such "behind the scenes" work has routinely been found appropriate.[2] Here we consider whether different rules apply to litigation assistance. Like the ethics committees of many of our sister states,[3] we conclude that unbundling to assist a pro se litigant is permitted by Rule 1.2(b), and that a properly informed client[4] may voluntarily contract for limited legal services.

Although the lawyer's services may be limited in scope by agreement with the client, as noted in the Comment to Rule 1.2, an agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. This applies directly to an agreement for unbundled legal services. Hence, lawyers providing unbundled legal services must do so competently (Rule 1.1); act with reasonable diligence and promptness in their engagement (Rule 1.3); have appropriate communications with and make necessary explanations to the client (Rule 1.4); charge fees and expenses that are reasonable (Rule 1.5); preserve the client's confidential information (Rule 1.6); and avoid conflicts of interest (Rules 1.7, 1.8 and 1.9).[5]

Limitation on the scope of representation must be reasonable.[6] Comment to Rule 1.2 notes that the limitation on scope may not be such that would result in the lawyer's violation of Rule 1.1 on providing competent representation, meaning that the lawyer cannot define the scope to permit performance of services inadequately, or fail to do that which is required to perform the work agreed upon competently.[7] In our view, the limitation on services described in the inquiry addressed by this Opinion can satisfy this requirement.

By definition, a limitation on the scope of representation means that there will be other aspects of the client's matter in which the lawyer will not be involved and as to which the client may be unassisted. In order to make clear the effect of the scope limitation, and to fulfill the lawyer's duties under Rule 1.4(b), the lawyer would need to explain to the client what services are not being provided that would be ordinarily implicated in the representation.[8] For example, the lawyer may need to explain that proceeding in a case with the pleadings provided may involve application of rules of evidence and procedures regarding presentation of proofs that are not within the scope of services to be provided; but it is sufficient to explain the existence and nature of such matters, not advise about them. The lawyer does not have to be responsible for counseling about matters outside the scope of representation, but must provide the client with adequate information and explanation about material risks of and available alternatives to the limited representation.[9] The sufficiency of the communication cannot be objectively defined. As noted in Comment to Rule 1.4, in discussing the duty to communicate:

Adequacy of communication depends in part on the kind of advice or assistance involved. [A] lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests and consistent with the client's overall requirements as to the character of the representation.

Rule 1.2(c) and 1.2(d) must also be considered. The lawyer must not assist the client in conduct the lawyer knows is illegal or fraudulent; and when the client expects assistance not permitted by any of the Rules or other law, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. The lawyer must be certain that the client's out-of-representation conduct in the matter in which the lawyer provides limited representation will not expose the lawyer to risk of violating either of these Rules.

In addition to recognizing and fulfilling obligations of professional conduct to the client, the lawyer also owes duties to others in the course of representing a client. We next consider whether the lawyer's assistance must be disclosed by the lawyer to the tribunal.

The subject of disclosure to the court of the lawyer's assistance has been considered by ethics committees of at least 20 state or local bar associations, by the American Bar Association's Standing Committee on Ethics and Professional Responsibility ("ABA Committee"), and by courts, over a 30 year time span, with divergent results. Some have concluded that the lawyer must disclose assistance and failing to do so is misconduct under Rule 8.4(b)[10] as dishonesty, deceit, or misrepresentation.[11] This view found support in the belief that pro se litigants receive special consideration and preferential treatment and are held to less stringent standards in pleadings by the courts, and failure to disclose that the litigant was assisted misled the court and gave unfair advantage over the represented party.[12] Some of these opinions require disclosure only when assistance was material but apply ad hoc standards of materiality, without establishing a "bright line" test of when disclosure would be required under the Rules and when not; and others would require disclosure not only of assistance but of the lawyer's identity in order to avoid evasion of a lawyer's responsibility under applicable rules of procedure for the lawyer's pleadings. In the course of discussion, opinions requiring disclosure also apply Rule 4.1(b)[13], requiring disclosure when necessary to avoid a fraudulent act by a client; and Rule 3.3(a)(2), requiring that a lawyer not fail to make a disclosure to the court when necessary to avoid assisting in crime or fraud, in declaring a lawyer's undisclosed assistance unethical. Often these opinions, and decisions of courts,[14] refer to court rules in support of disclosure requirements.

Another body of opinions disagrees with the premise that pro se litigants are advantaged; and with application of MRPC 8.4(b) or 3.3(a), unless there is an affirmative misrepresentation attributable to the lawyer that the litigant is not represented.[15] These opinions note that application of the Rules focuses on the conduct of the lawyer, not the lawyer's client. Representative of these opinions is ABA Formal Opinion 07-446, which states:

Whether the lawyer must see to it that the client makes some disclosure to the tribunal (or makes some disclosure independently) depends on whether the fact of the assistance is material to the matter, that is, whether the failure to disclose that fact would constitute fraudulent or otherwise dishonest conduct on the part of the client, thereby involving the lawyer in conduct violative of Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). In our opinion, the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.

We agree. Unless there is an affirmative misrepresentation that a pro se litigant has not been assisted by a lawyer, assistance by a lawyer need not be disclosed to the tribunal under the Michigan Rules of Professional Conduct. [16]

Finally, we consider whether the lawyer may, if ordered by the Court, disclose the fact of the assistance without the express consent of the assisted pro se litigant. Michigan's Rule 1.6 pertains to "confidences" and "secrets" and not "information pertaining to the representation," as does the Model Rule. Michigan's Rule has not been applied to protect the identity of the client, which would be protected information under the Model rule. In addition, both MRPC 1.6(c)(2) and the Model Rule permit disclosure when required by law or court order. We do not purport to interpret the question whether a court rule is a "law or court order" as that is beyond the scope of this opinion. To avoid the possibility of a confidentiality issue, should it later become necessary for the lawyer to disclose his or her involvement, a lawyer providing limited legal service should at the outset of the representation obtain the consent of the assisted party that the lawyer's participation may be disclosed to the court.

In summary, a lawyer is permitted to provide unbundled legal services to a properly informed client, but he or she retains all of the professional responsibility that would exist in the case of ordinary services. Where the unbundled services involve preparation of pleadings and consultation on a litigation matter, disclosure of the lawyer's role is not required unless the client makes an affirmative representation to the contrary.

[1] Although our Rule is stated in terms of limiting the "objectives of the representation," it is widely accepted that the client alone determines the objectives of representation and the lawyer and client agree on what services are to be provided by the lawyer to pursue them. See Reporter's Notes to 2003 Model Rules of Professional Conduct.

[2] In RI-326, this Committee interpreted MRPC 1.2(b) as permitting limitation of the scope of services in an estate planning context. See also, e.g., South Carolina Bar Ethics Advisory Opinion 05-18 (October 21, 2005) (attorney may limit representation to certain portions of real estate transaction); Wisconsin Ethics Opinion E-97-1 (lawyer may ethically limit the scope of his or her representation in a residential real estate transaction to drafting a deed and transfer return).

[3]E.g. Arizona Opinion 06-03 (July 2006); Illinois State Bar Association Advisory Opinion on Professional Conduct Opinion No. 849 (December 9, 1983); Alaska Ethics Opinion 93-1 (March 19, 1993); Los Angeles County Bar Association Ethics Opinion No. 483.

[4] We assume for purposes of this discussion that the pro se litigant is a "client" for purposes of applying the Rules of Professional Conduct, which we believe is appropriate. The relationship of lawyer and client is not determined by the Rules but by applicable law.

[5]See for example, Maine Opinion 89 (August 31, 1988) (lawyer preparing pleadings for pro se client remains responsible to client for assuring the adequacy of the pleadings); Los Angeles County Bar Association Formal Opinion 502 (November 4, 1999) (attorney who prepares documents to be filed by a pro se litigant must comply with the ethical duties that pertain to the preparation of pleadings and candor to the tribunal).

[6] Model Rule 1.2(c), the ABA counterpart to Michigan's Rule 1.2(b), requires that the limitation on scope be "reasonable under the circumstances." Although Michigan's Rule does not expressly require that the limitation on representation be "reasonable under the circumstances," we believe that such an overlay should be read into Michigan's Rule.

[7] It is noted in Comment [7] to the ABA Model Rule: "Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

[8]See Michigan Informal Opinion RI-326.

[9] In defining what is meant by the requirement of consultation, as required by Rule 1.2(b), Michigan Rule 1.0 defines consultation as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." In this opinion, we apply an objective standard for the lawyer's conduct.

[10] This reference is, of course, to the Michigan Rule. In most jurisdictions having Model Rule based Rules, the Rule declaring dishonesty, deceit and misrepresentation to be misconduct appears as Rule 8.4(c). We include this note for ease of additional research.

[11] These opinions include: Connecticut Opinion 98-5 (January 30, 1998); Kentucky Bar Association Ethics Opinion KBA E-343 (January 1991); Delaware State Bar Association Committee on Professional Ethics Opinion 1994-2 (May 6, 1994); Massachusetts Bar Association Ethics Opinion No. 98-1; and Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Opinion 613 (September 24, 1990).

[12]See The Association of the Bar of the City of New York Formal Opinion 1987-2 (March 23, 1987). Indeed, some courts have said that a trial court should exhibit greater patience with a pro se litigant than it would with a litigant represented by counsel, and pro se pleadings may be held to less stringent standards. E.g., Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001). These cases seem to be derived from Haines v. Kerner, 404 U.S. 520 (1971). The concern about "preferential treatment" was rejected by the Alaska Bar Association Ethics Committee which, in Opinion 93-1, n 2 (March 4, 1993), said:

The requirement [of disclosure] is premised on the belief that non-disclosure of such assistance would be misleading because pro se litigants may, and often times do, receive preferential treatment from the court. Upon reflection, the Committee is not certain that this belief is well founded. The committee believes that judges are usually able to discern when a pro se litigant has received the assistance of counsel in preparing or drafting pleadings. In that event, the Committee believes that any preferential treatment otherwise afforded the litigant will likely be tempered, if not overlooked.

[13] The Michigan Rules do not include this Rule, which forbids a lawyer from failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

[14]See, e.g., Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001); Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp 1075 (E.D. Va. 1997); Kircher v. Charter Township of Ypsilanti, 2007 WL 4557714 (E.D. Mich. December 21, 2007). Local Court Rules must be considered. Although the Court in Kircher noted that Fed.R.Civ.P. 11 was not per se violated by ghostwritten pleadings, it nevertheless considered the lawyer's assistance to a pro se litigant as "improper."

[15] Alaska Ethics Opinion No. 93-1 (March 19, 1993); Arizona Committee on the Rules of Professional Conduct of the State Bar of Arizona Opinion 06-03 (July 2006); Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinion No. 502 (November 4, 1999); Maine Opinion 89 (August 31, 1988); North Carolina Bar 2008 Formal Ethics Opinion 3 (January 23, 2009); Board of Professional Responsibility of the Supreme Court of Tennessee Formal Ethics Opinion 2007-F-153 (March 23, 2007); and Utah State Bar Ethics Advisory Opinion Committee Opinion No. 08-01 (April 8, 2008). We recognize that where there are court rules applicable to representing pro se litigants, they will apply to and govern the lawyer's conduct in proceedings in that court; however, such rules are not themselves determinative of a violation of the Rules of Professional Conduct, and are beyond the scope of this opinion.

[16]See also, e.g., D.C. Bar Opinion 330 (July 2005) (provision of legal services through unbundled legal service arrangements is permissible, provided the client is fully informed of the limits on the scope of the representation and those limits do not bar the provision of competent service); Los Angeles County Bar Association Formal Opinion No. 502 (November 4, 1999) (attorney may limit the scope of representation of a litigation client to consultation, the preparation of pleadings to be filed with the client in pro per, and participation in settlement discussions so long as the limited scope of representation is fully explained and the client consents to it); North Carolina 2008 Formal Ethics Opinion 3 (January 23, 2009) (lawyer may assist a pro se litigant by drafting pleadings and giving advice without making an appearance in the proceeding and without disclosing or ensuring the disclosure of his assistance to the court unless required by law or court order).