Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers
LIMITED SCOPE REPRESENTATIONS
What Does “Reasonable Under the Circumstances” Mean in the Context of Limited Legal Services?
Effective July 1, 2015,1 Rule 1.2(c) of the Maryland Rules of Professional Conduct was amended to allow limited scope representations.
“Limited scope representation” or “unbundled legal service” is a relationship between a lawyer and a client in which the parties agree that the scope of the legal services being provided by a lawyer will be limited to a specified duration, task, or subject matter, rather than a matter in its entirety.
The amended rule permits a lawyer to limit the scope of representation “in accordance with Maryland Rules” under three conditions:
(1) the limitation is reasonable under the circumstances, (2) the client gives informed consent, and (3) the scope and limitations of any representation, beyond an initial consultation or brief advice provided without a fee, are clearly set forth in a writing, including any duty on the part of the lawyer under Rule 1-324 to forward notices to the client.
Among the explicit new requirements of the rule are the “in accordance with Maryland Rules” requirement and the above third condition, which provides that if you charge for the limited service, the limitations and focus of scope must be in writing. This article considers the ‘in writing’ requirement as well as the pre-existing “reasonable under the circumstances” and “informed consent” conditions are affected by that requirement.
1. Is a written agreement required?
It is always prudent practice to put basic understandings concerning rights, duties and fees of a lawyer-client engagement in a writing. In some circumstances, such as any contingency fee agreement, the agreement must be signed by the client. MRPC 1.5. A writing offers an objectively verifiable basis for establishing the lawyer-client understanding. Under revised Rule 1.2, if a fee is charged for limited scope services, “the scope and limitations” must be clearly set forth in writing.
Accordingly, if a potential client calls or stops by seeking a specific service for which a fee will be charged, such as advice about a hypothetical, or explaining, marking up or writing a contract, the scope and limitations of the professional relationship may very well need to be in writing, depending on the circumstances and the scope of the overall matter. For example, if a matter is already pending in court and you are consulted and do not enter your appearance, as comment 8 to Rule 1.2 expressly notes, in addition to requiring a writing, the lawyer has obligations of informed consent as to the extent and limits of the lawyer’s obligations. The same holds true for giving legal advice as to the client’s rights, responsibilities or obligations with respect to a particular matter, such as representing the client in settlement negotiations or in an ADR proceeding, advising with regard to settlement options and proposals, drafting documents (including apparently “ghost writing” pleadings), performing legal research or providing advice which the client or another attorney who enters an appearance for the client may use in a judicial or administrative proceeding. In addition, should the lawyer wish to enter an appearance, he or she may do so and limit that appearance to a discrete judicial or administrative proceeding, but only after fully and fairly informing the client in writing as to the extent and limits of the lawyer’s obligations.
While a signed retainer agreement is the gold standard, law firms may write service and scope limitations in an e-mail or publish terms on a web page. The rule does not require that the writing be signed by the client. It requires simply that the writing spell out the “reasonable” limitations and that the potential client gave informed consent.
A “click-wrap” agreement, meaning a posted agreement that “describes precisely limitations on services” and states that the client’s engagement of services is conditioned on acceptance of those limitations could meet the test. Cf. Suggested Minimum Requirements for Law Firms Delivering Legal Services Online, eLawyering Task Force, ABA, October 15, 2009; Louisiana State Bar Association Public Opinion 05–RPCC-005, ftn 4, Sept. 27, 2005 (“appropriate safeguards, disclaimers and advance notices in place”).
2. Informed Consent.
While revised Rule 1.2 (c) does not specifically address the meaning of written informed consent, comment 19 to Rule 1.7 pertaining to conflicts of interests offers some insight as do Rules 1.0 (b) and (p) as to the nature of the required writing. In part, the comment provides, “The requirement of a writing does not supplant the need in most case for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation… as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns.”
A potential client who sees such a writing certainly has reason to know its contents. If the writing provides that securing services indicates understanding the statement of the terms of service, so much the better.
Determining whether the client actually saw and understood the terms of an agreement will depend on factors that cannot be controlled by a form, such as the client’s sophistication, whether the terms were actually discussed, and possibly the general nature of the larger matter. The prudent practitioner should refer to the terms of engagement routinely with new clients or for new matters, and orally confirm understanding and acceptance. If there is reason to believe the client really doesn’t have a firm grasp of the terms of engagement or meaning of the advice given, the lawyer risks violating duties of diligence (Rule 1.3) and communication (Rule 1.4).
Comment 7 to Rule 1.2 (not changed by the recent amendment) states that limitations must be “reasonable under the circumstances,” offering the example of the client seeking general information to handle a “common and typically uncomplicated legal problem.” The scope of services may reasonably be limited to a brief telephone consultation if the time allotted is sufficient to “yield advice upon which the client could rely.” The limitation is then “a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.” New Comments 8 and 9 to Rule 1.2 offer various examples of the kinds of task or objective limitations the drafters had in mind, including filing papers, legal advice on rights and obligations in a matter, fact investigations, forum limitations, reviewing and drafting documents, involvement in a collaborative law process, and advising and appearing in a judicial or administrative proceeding.
In considering the reasonableness of any limitations or statements of scope, the practitioner might keep in mind the relevance of precedent concerning reasonable fees, requiring that “reasonableness” to be measured both prospectively and retrospectively. See Rule 1.5(a)(4); Attorney Grievance Commission v. Pennington, 733 A.2d 1029, 355 Md. 61 (Md., 1999). What seems reasonable going in may not be reasonable going out. Predicting how much time a service requires is not a science. Mastering the necessary facts of a matter takes time and effort, and the amount of time and effort is as dependent on the client’s memory, documents, organization and focus as it is on the lawyer’s legal knowledge and experience in the area of law. Once the facts are understood, they may invite consideration of unforeseen legal issues expanding away from the originally envisioned service.
Because the amendments are so new, Maryland Bar’s ethics opinion data base offers no no further detail regarding the task or objective limitations examples in new Comment 8 to Rule 1.2(c) or regarding the scope of the rule generally. The reasonableness standard is addressed in DC Bar Ethics Opinion 316, concerning lawyers’ duties in participating in chat room communications (being limited to the question/answer format, chat room participation is a form of unbundled services). The opinion says such conduct involves duties of competence, diligence, communication, confidentiality and the avoidance of conflicts of interest. Subsequent DC Bar Ethics Opinion 330, which more generally concerns unbundled services, references added duties of communication (touched on here), promptness and loyalty.
• The prudent practitioner should provide unbundled or limited services in accordance with a written agreement that spells out the scope and limitations of any services provided in clear simple terms.
• The agreement need not be signed, but should contain language to the effect that acceptance of services must be pursuant to its terms.
• For e-mailed or posted terms, i.e., unsigned agreements, the attorney should routinely confirm orally that the client has seen the terms, understands them, and accepts them.
• The practitioner should take care to memorialize any understandings regarding changes in the scope and limitations of additional services (and their costs) not within the original writing.
• Finally, as certain as death and taxes, sometimes initial judgments about what’s reasonable fall to the revealed facts and require reassessment of the scope and terms of the relationship. The lawyer must then provide “advice upon which the client could rely” and such further advice as may be required by the duties of competence, diligence, communication, confidentiality, promptness, loyalty, and the avoidance of conflicts of interest.
1The Court of Appeals Rules Order issued March 2, 2015, p. 4. Rule 1.2 and its relationship to newly-amended Civil Procedure Rules 1-321 and 1-324 (concerning service), 2-131 and 2-132 (District Court), and 3-131 and 3-132 (Circuit Court), are discussed in an article by Lydia E. Lawless appearing in the February 2015 issue of The Maryland Litigator and republished in the June 2015 issue of the Montgomery County Bar Association’s Newsletter (Vol. 63, Issue 1).
Eric A. Eisen, Committee Member
Allen J. Katz, Co-Chair
Daniel L. Shea, Co-Chair
Samuel M. Shapiro, Co-Chair
Allen J. Katz
Samuel M. Shapiro
Daniel L. Shea
October 15, 2015
November 19, 2015
December 17, 2015
January 21, 2016
February 18, 20156
March 17, 2016
April 21, 2016
May 19, 2016
Meetings will be held at 4:30 p.m. on the 3rd Thursday of the month in the upstairs conference room of the Bar Association building, unless otherwise noted.