New proposals to facilitate limited representation in Illinois

There is a lot of talk about the concept of "unbundling" of legal services these days. Unbundling usually refers to an agreement in which the attorney agrees to help the client with a distinct and limited task. For example, the attorney would agree to review a document that the client will use to negotiate a deal by himself. The attorney's representation in such circumstances is "limited" to reviewing the document; not to negotiate for the client, not to represent the client in any proceeding, etc. Just reviewing the document. For everything else, the client is either on his or her own or will rely on other lawyers.

Much of the recent discussion about unbundling attempts to spin the notion of providing limited representation as an attempt by lawyers to provide some access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case.

The problem I am having with all this is that we have always known the vast majority of the legal needs of the poor are not being met AND we have always had the ability to limit the scope of representation. There is nothing new about this. (See Rule 1.2 and its comment.)

So why all of a sudden are lawyers so worried about the needs of the poor? The "negative" answer is, of course, that it is because the economy is bad and so many lawyers are desperately seeking clients; which means lawyers are more willing to do little things for people they would normally not want to represent because lawyers need the money.

This was the underlying debate in the discussion on "ghostwritting" I posted recently (here and here). The underlying question was whether an attorney who writes a court document for a pro-se litigant should be required to disclose (in the document) that the lawyer helped the client prepare it. A recent ethics opinion in the state of New York concluded that attorneys could remain incognito. In response it has been said that anonymity can result in abuses and in lawyers taking advantage of the clients they are supposedly trying to help by unbundling the services. As one blogger put it "the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don't know better."

This debate is now before the Supreme Court of Illinois. It is considering some proposals to amend certain rules to regulate limited representation in the state. The proposals are available here.

Interestingly, the proposal regarding "ghostwriting" is the opposite of the view adopted in New York. The proposal reads as follows:

An attorney may assist a self-represented person in preparing a pleading, motion, or other paper. The self-represented person shall sign the pleading, motion, or other paper, and on the signature page the attorney shall insert the notation "Prepared with assistance of counsel under Supreme Court Rule 137" followed by the attorney’s name, firm, or organization name (if any), business address, and phone number. This notation does not constitute either a general or limited appearance by the attorney. An attorney providing assistance may rely on the self-represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false. ...