When Limited Access Representation was first introduced in
Massachusetts about a decade ago, the legal system pushed back
hard. Judges resisted it because they wanted to see consistency in
legal representation in cases from beginning to end. Attorneys
feared it would draw business away. And you've all heard the
saying, "He who is his own lawyer has a fool for a client."
That was then, this is now.
On May 1, 2009, the Massachusetts Supreme Judicial Court
permitted the use of Limited Assistance Representation (LAR) in all
the state's trial courts. Each Trial Court Department chief
justice, with approval of Chief Justice for Administration and
Management Robert A. Mulligan, could now make LAR available in his
or her trial court.
The Probate and Family Court adopted LAR in all its divisions as
of May 8 of last year. As of May 3 of this year, the Boston
Municipal Court adopted it for civil cases. The District Court
recently decided to pilot LAR in its civil cases, and the Housing
Court expects to adopt LAR in the near future. The Land Court has
also expressed interest in LAR. "Those courts that have adopted LAR
or are considering doing so recognize its potential to benefit
attorneys, self-represented litigants, and the court," notes Judge
Dina Fein, special advisor to the Trial Court for access to justice
initiatives. "It really is a win-win-win."
Of the driving forces behind the change of heart are, first, the
increasing number of pro se litigants appearing in the
state's trial courts. Self represention slows the legal process at
a time when the courts are already groaning under budget
constraints. But secondly, there's the freedom LAR gives attorneys
to participate in a case to an extent that both they and the client
control. And far from taking business away, LAR presents the
opportunity to represent clients who otherwise would have no
representation at all.
For those who have none
LAR permits an attorney, either for payment or pro bono, to
assist a litigant on a limited basis without undertaking full
representation of the client on all issues and events related to
the client's case.
The benefit to attorneys is that they do not have to make an
open-ended commitment to fully represent a client on a case that
may drag on for months or years - and not get paid for it. It's a
sensitive issue for lawyers, particularly those in small practices
for whom not getting paid on an ongoing, work-intensive case can
impose genuine economic hardship. Attorneys note that this
situation results in lawyers requesting large retainers to make up
for the economic risk they are taking. This discourages low- or
moderate-income clients from seeking legal representation at all -
hence, the increase in the number of pro se litigants.
That's a real problem. As the Hon. Edward M. Ginsburg, a retired
probate court judge who founded Senior Partners for Justice, says
at the beginning of a two-part LAR training tape, "Everybody began
to become acutely aware of the fact that the choice often is not
whether somebody's going to have full representation or partial
representation - the choices become full representation or NO
representation, because more and more people have been opting to go
pro se. And I daresay if you go down to the Suffolk
Probate Court, you'll see over 60 percent of the people are pro
se. For laywers to say 'Well, we'll only do the whole
thing, and you've got to pay us for the whole thing, or, fry,' the
people said, 'We'll fry!' to be quite honest about it."
Since that training tape was made, the percentage of pro se
litigants in Suffolk County has increased to 70 percent.
"The benefit to the court is significant," says Chief Justice
Paula M. Carey of the Probate and Family Court. "People are more
informed, pleadings are better prepared, even if we have a
temporary order stayed, that sets the stage for things to settle."
She adds, "I would rather have someone [represented] from start to
finish, but this is an opportunity for those who wouldn't have any
Fein notes that many lawyers report that LAR has enhanced their
ability to provide legal representation, on both a pro bono and a
fee-for-service basis. It allows a pro bono attorney to provide
meaningful assistance while making a limited and predictable
commitment. Entrepreneurial fee-for-service attorneys "are
incorporating LAR into their marketing, and understandably so," she
says. "While full representation with commensurate retainers might
be out of reach for many individuals, those same prospective
clients may well be able to pay an attorney a flat fee for limited
representation. LAR recognizes this reality, to the great benefit
of our profession."
LAR and access to justice
LAR is one of the four priority projects identified in the
Interim Report on Access to Justice Initiatives in the Trial Court
issued in January. Protocols and procedures for the use of LAR are
established by each court department.
Fein says enhancing access to justice in the state's trial
courts requires the development of tools to facilitate effective
self-representation, and increasing the pool of available advocates
for litigants. "The initiative's Task Force on Limited Assistance
Representation, chaired by Probate and Family Court Judge Linda
Fidnick and Housing Court Administrative Attorney Allison Cole, has
done terrific work in promoting the role of LAR to help address
these challenges, and in so doing has created a wonderful
opportunity for the bar," she says.
Lawyers weigh in
"It can be enormously profitable," says Laura Unflat, a family
law attorney based in Wellesley. "You take the cases you want and
help the people you want, and get paid for it." In the course of an
initial consultation with a client, Unflat makes a determination as
to whether the case lends itself to LAR. If so, she follows up with
LAR forms (available on the Massachusetts courts Web site) and a
letter of engagement and a checklist. She usually does not meet in
person with the client again, but does everything by phone.
LAR can also be used to help another attorney's client if the
other attorney is temporarily unavailable. Walpole attorney Jessica
Baker has done a limited appearance for a colleague's client when
the colleague's client needed to get child support.
"It would be great if they had it at every court," she says,
noting that inexperienced pro se litigants often make
mistakes that can't be undone. "It takes a load off the judges;
they can't 'assist' the pro se litigants but they have to
guide them through the process. [LAR] speeds things along. You
don't see judges sending them back out and having them come back
Stig Bolgen, a Woburn divorce lawyer with a two-person practice,
says the upfront costs of LAR can be significantly less than those
for full representation because of the reduction of risk.
Additionally, he says, LAR can be used for crucial temporary orders
that "often set the stage for the rest of the case." An attorney
can execute the temporary orders, get off the case, and if it goes
unresolved, can re-enter for a pre-trial conference. However, he
says, "Lawyers need to play by the rules - enter an appearance,
then withdraw at the end of the event."
Training materials for LAR confirm the importance of a
definitive withdrawal point. Bolgen says he sometimes works into
the fee agreement the allowance that he will participate in some
brief conference with the client after the LAR event. "Looking at
it from a consumer perspective, the client has paid you real money,
and the lawyer has to be aware that the clients are looking for
value. You must balance your strong obligation to comply with all
the ethical rules [of representation] with the realities of clients
that like to call."
"I can't see it helping in [juvenile court]," says Joanna
Cobleigh, a probate lawyer who sometimes practices in juvenile
court. "I don't see where it would help in any type of criminal
case. I could see it helping in a civil case, however," - helping
to draft a complaint, for example. But in terms of representing
someone in a contempt case, she notes, she has found it difficult
to do so and still maintain LAR. Additionally, it's still incumbent
upon the LAR attorney to make sure all the facts and issues in a
pleading are credible.
"You can't do complete discovery and you certainly don't want to
sign the financial statement without a full
disclosure/investigation. You just have to make sure the client
understands they need to be truthful in all aspects of the
pleadings as well as the financial statements/disclosures," she
All in all, though, the process works well, Cobleigh notes. "I
think pro ses are more likely to hire an attorney to do
some piece, so it actually increases attorney revenue. Otherwise,
they don't hire anyone and we all 'lose out.' Without LAR, clients
lose because they don't know what they are doing and lawyers lose
because they get no revenue from these cases."
The "L" in LAR
While most of the experience so far with LAR has been in Probate
and Family Court, Fein says that LAR's suitability is not
determined by a particular court, but by a particular case -
wherever and whenever an attorney can provide meaningful
assistance, pro bono or fee for service, by taking on just part of
"There are any number of cases, including family, housing, debt
collection and other civil cases, in which an attorney's
involvement at a key point in the case can be of enormous benefit
to the parties and the court - with the idea being that aspects of
the litigation before and after that key point can be managed
effectively by the self-represented litigant," Fein said. "Examples
that come to mind might be a pre-trial conference in a divorce
case; a summary process trial or mediation; and a motion to dismiss
in a debt collection case."
Crucial to LAR's success is for client, lawyer and court to
understand the limits of the representation, Fein said.
"Necessarily that means that LAR is best suited to discrete events
or issues, with clear boundaries. That can mean everything from
'ghostwriting' a single pleading to attending a single hearing. LAR
is less well suited to those aspects of litigation that cannot be
clearly circumscribed. By way of example, an attorney might be more
comfortable agreeing to draft and serve one set of interrogatories,
which is self-limited, than agreeing to 'conduct discovery,' which
can be quite open-ended. Again, however, the key is for the
retainer agreement to delineate the scope of the presentation very
clearly, and for the attorney's limited court appearance, when
required, to be consistent with the retainer agreement. And, of
course, there's nothing preventing an attorney and a client from
renegotiating the scope of their relationship - entering into a new
agreement as the case develops - assuming they reduce the new
agreement to writing."
Christina P. O'Neill is custom publications editor for The
Warren Group, publisher of Massachusetts Lawyers