Limited Scope Representation: A Fact of Life, But Risky for Attorneys
While attorneys should expressly limit their representation, they must understand how to do it and the restrictions on their ability to do so.
January 14, 2016 at 08:55 AM
8 minute read
The original version of this story was published on New Jersey Law Journal
The practice of limiting the scope of an attorney's representation has become an integral part of most private attorneys' practices today. It can be a vehicle to assure the client and attorney agree on what services the attorney is being asked to perform, but such agreements create risks for the attorney because such limitations are at odds with an attorney's general duty to represent a client. While attorneys should expressly limit their representation, they must understand how to do it and the restrictions on their ability to do so.
RPC 1.2(c) explicitly allows an attorney to limit the scope of the representation “if the limitation is reasonable under the circumstances and the client gives informed consent.” What is “reasonable” is not defined by RPC 1.2(c) or the attendant comments. Sources suggest that “reasonable” is “what is not harmful to the client.” Hazard and Hodes, The Law of Lawyering, §5.10. This caveat is potentially so broad that it may effectively preclude an attorney from limiting potential liability. Thus, this rule, lauded by many for making legal services more readily available, is fraught with risk stemming from its ill-defined contours. A well-crafted engagement letter, recurring re-evaluation of the relationship, and candid communications with the client regarding the implications of the limited representation are necessary.
The fundamental purpose of an engagement letter is to define the terms under which the relationship between the parties is governed, including the scope of the relationship. Provided the requirements of RPC 1.2(c) are met, and there are no violations of other applicable ethics or court rules, the following limited representations are permissible in New Jersey: investigation; simple advice; aid in completing court or other forms; brief service such as the communication of a client's position to a third party; negotiation; suggestions on how to approach litigation; and the drafting of pleadings and briefs. Advisory Committee on Professional Ethics Opinion 713, 191 N.J.L.J. 302 (2008).
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