Lawyers Journal

Law à la Carte: Limited Assistance Representation's impact on the court system and lawyers

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.

Better justice

"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 [representation]."

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 in."

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 says.

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 a case.

"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 Journal.

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