What is LR? How Can you use it? The Ethics and Civil Practice Rules The Nuts and Bolts of the Rules
June 13, 2014 Dorene A. Kuffer
Law Office of Dorene A. Kuffer, P.C.
[email protected] .com
What is LR?
How Can you use it?
The Ethics and Civil Practice Rules
The Nuts and Bolts of the Rules
Entering your Appearance
Limited‐scope representation is an arrangement with a lawyer to receive help on some parts of a case Previously decided fee, limited fees or pro bono
Such representation is also called unbundled legal services, unbundling, limited scope assistance, or discrete task representation
In such services the client and attorney select specific services to be provided rather than the full package of services that are traditionally offered by law firms.
How do you use it in your practice?
Taking on a part of a case
Legal evaluation of the client’s case.
Guidance and procedural information for filing or serving documents.
Review of correspondence and court documents.
Factual investigation: contacting witnesses, public record searches, in‐depth interview of client.
Legal research and analysis.
Discovery: interrogatories, depositions, requests for document production.
Taking on one case and not another DV v. DM
Trial v. Appeal
1‐089 NMRA, paragraph A (page 1)
Allows for limited appearance
Informs you how to draft
1‐089 NMRA, paragraph C
Rules for withdrawal from limited rep
No permission required
16‐102C ‐ Scope of Representation (page 2)
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Suggests a two pronged approach
Informed consent by client
What all parties are responsible for
Check‐ and task‐lists
Reasonable under the circumstances
Determined at time of entry
Is the limited service useful to the client?
Sometimes LS is all a client can get 5
Handout or Brochure for client
Explain what limited service is
Explains the type of work each party can/will do
Explains need for complete communication and information
Case Opening/Engagement Letter
Fully sets forth the agreement
Explained with client prior to signing
Example of my Fee Agreement/Engagement Letter ‐
Use a checklist
Accurately document everything
Insures you notify client of everything
Helps to remember forms/brochures/information
Use a task and/or issue list
As an addendum to the retainer
Agree together who handles what
Include dates for completion to keep the case moving
Each case is unique Sample at pages 13‐16 and in supplemental materials
Can depend on the type of case and representation you wish to provide
All include check and task lists.
I use a simple one‐page form for all consultations.
Rule 16‐101: the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Varies with the scope of representation and the type and complexity of the case
In LR you also need to be a good coach
See comment 7 to 16‐102 on page 3
16‐303E ‐ In all proceedings where a lawyer appears for a client in a limited manner, that lawyer shall disclose to the tribunal the scope of representation.
Comments ‐ “Attorneys may give technical assistance and…may prepare without attribution, papers for filing by a self‐represented litigation without violating the duty of candor”
Caution: In Federal Courts you must attribute your work
You MUST check for conflicts!
Protects the law firm/lawyer so you won’t be conflicted out in the future
No conflict exists (and no need to check for conflicts) if:
Free, short‐term limited rep ie: Legal hotline/tip line
No expectation by lawyer or client that continuing representation will occur
Concurrent and successive conflicts ONLY if the lawyer “knows a conflict exists”. Same with vicarious conflict.
Rules in all Courts are Similar
District Court Rule of Civil Procedure 1‐089:
File “Limited Entry of Appearance”
Signature Block: “Limited Entry of Appearance”
Include client’s address for service
Similar Rules in Metro Court (3‐107 and 3‐108) and Magistrate Court (2‐107 and 2‐108)
Page 17 example
REMINDER: “Limited Entry of
Appearance” must appear on every subsequent pleading you file!!!!
Watch out for emergencies
Stay in your area of expertise
Don’t change the scope without a written agreement
Chose appropriate clients
Not too needy
Not too emotional
Reasonable expectations from the outset
Use of Follow up Checklists
Copy to client
Makes sure everyone is informed!
Special Issues With DV Victims
May not be appropriate to self‐represent
Be open with the client
Don’t just “hand out forms”
Provide advice on completion
Provide advice on what to do with the forms
Brochures, checklists for client
Watch out for technical and difficult issues
As lawyer we should counsel clients away from pro se representation in difficult issues or if the client is not able to self‐
Rule of Civil Procedure 1‐089C
Limited entry of appearance filed,
Completed the purpose of the Limited Representation,
No court order permitting withdrawal needed,
Just file Notice of Withdrawal or Substitution of Counsel,
If you don’t file the Notice the court can keep you in the case (or enter an order requiring any actions the court deems necessary),
If you attempt to withdraw before you scope of rep is complete, court permission needed.
Rule 16‐116 – Declining or Terminating representation
Comply with applicable law requiring notice to or permission of tribunal (Rule 1‐089 – no permission required)
Comments: “Ordinarily, a representation in a manner is completed when the agreed upon assistance has been concluded”
when a lawyer completes the limited service the lawyer has promised to provide, the court should allow the lawyer to withdraw.
Must also comply with rule 16‐116D
Reasonable notice to client
Allow time to employ other counsel
Surrender papers and property
Refunded advanced fees/costs not expended
• 16‐102 (C ) – Comments: “upon expiration of the limited representation agreement, the lawyer should advise the client of any impending deadlines, pending tasks, or other consequences flowing from the term of the Limited Representation”.
• Carefully crafted closing letters are key
• Example of Notice – page 19