You are here

More on Unbundling

The last column, on ghostwriting, (October 2014 CBA Record) concluded that recent Illinois Supreme Court Rule amendments “have clarified that ‘ghostwriting’ for a pro se party is a permissible unbundling of services in Illinois.” The rules also provide that lawyers preparing court filings as an unbundled service do not generally have to file a court appearance. However, the column also indicated that there is continuing debate on the issue of what disclosure lawyers providing unbundled services to pro se parties must provide to courts regarding those services.

A recent Minnesota Supreme Court case, In re Petition for Disciplinary Action Against A.B., a Minnesota Attorney, A13-1856, October 8, 2014, is an example of this continuing debate. The facts of In re A.B are fairly extensive. The following is summary:
“[Client] retained A.B. to represent her in a cooperative divorce from her husband. The fee agreement required A.B. to prepare certain paperwork and to represent [Client] at one uncontested divorce hearing, in exchange for a flat fee. . . . After A.B. filed the initial divorce papers, an associate in A.B’s office attended the hearing scheduled by the district court. . . . Based on the decree, A.B. ceased to be the attorney of record as of September 11, 2011. . . . [Client] told A.B. that she would attend [a subsequent] hearing by herself. After noting that A.B. had represented her at an earlier hearing, the district court asked [Client] at the hearing whether A.B. was “representing [her] any more in this matter?” [Client] responded “[n]o,” and the district court acknowledged that, as of 61 days after entry of the divorce decree, A.B. no longer represented [Client] in the proceedings. . . . After the hearing, [Client] asked A.B. to prepare an amended divorce decree in accordance with the district court’s instructions. A.B. agreed to do so, and over the next several months, A.B. worked with [Client] and her former husband to revise the decree. . . . During the winter [and spring] of 2012, [a number of hearings were scheduled which [Client] failed to attend for various reasons.] When neither [Client] nor A.B. appeared at [a June] hearing, the district court contacted A.B. and requested an explanation. A.B. said that he had not planned to attend the hearing because [Client] had asked him not to do so and that he did not know why [Client] had not attended. A.B. unsuccessfully attempted to locate [Client] that morning and offered to come to court anyway, but the district court declined the offer.”

“After A.B. did not appear at the June 20 hearing, the judge filed a complaint with the Office of Lawyers Professional Responsibility. Following an investigation, the district ethics committee recommended that no discipline be imposed on A.B. The Director rejected the committee’s recommendation and issued an admonition … .” The admonition was upheld by a review panel. A.B. then appealed the decision to the Minnesota Supreme Court.

After a review of the record, the court stated:
“Based on the unique facts of this case, we . . . conclude that the panel erred when it determined that A.B.’s failure to attend the June 20 hearing violated Minn. R. Prof. Conduct 8.4(d). [Client] instructed A.B. not to attend the hearing pursuant to the terms of a limited-scope legal representation, the propriety of which the Director does not challenge. A.B. reasonably believed that [Client] would attend the hearing, at which point she could inform the court that she had instructed A.B. not to attend. Under these circumstances, we vacate the admonition because A.B.’s conduct was neither prejudicial to the administration of justice nor warranted discipline.”

The decision supports the ability of a lawyer to enter into a limited-scope representation in a court setting. If you have a clear agreement limiting your duties, at least in Minnesota, you can rely on the scope of your duties not being enlarged. However, the case also shows that there is a clear difference of opinion on this subject. The district court judge and the Director of the Office of Lawyers Professional Responsibility taking one position, and the ethics committee and the Minnesota Supreme Court taking another. The balance between the general duties of a lawyer to a client and the limits imposed by an unbundling agreement is going to be debated for a long time.