On June 17, 2005 at its quarterly meeting, the Board of Professional
Responsibility adopted proposed Ethics Opinion 2005-F-151 which sets out
ethical responsibilities of lawyers employed by a legal services organization
intended to provide limited legal services to otherwise Pro Se litigants. The
Board of Professional Responsibility took public comment from the bar prior to
adopting the new Formal Opinion.
Formal Ethics Opinion 2005-F-151 is reprinted below in its entirety and may
also be viewed in PDF format here:
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE
SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 2005-F-151
Lawyers have concerns about ethical responsibilities while employed by a legal
services organization in a pilot program intended to provide limited legal
services to otherwise pro se litigants.
The Community Legal Center (CLC) of Memphis, Tennessee, in conjunction with the
Administrative Office of the Courts’Working Group on Self Represented Litigants
has established a pilot program to provide limited representation services to
unrepresented persons in divorce and related matters. The Pro Se Clinic is
housed in the Shelby County Courthouse.
Initially, two attorneys staff the office at different times. The attorneys are
paid modest compensation by CLC. The attorneys consult with persons financially
unable to afford legal representation in domestic relations matters. In cases
deemed appropriate, one of the attorneys provides limited advice and assistance
without becoming counsel of record in the matter. In assessing the
appropriateness of matters, the attorney attempts to assess the capacity of the
client to understand the procedures, the complexity of the matter and other
pertinent factors.
The attorney discloses the compensation by CLC to each client and obtains the
client’s compliance with RPC 1.8(f) and 5.4(c). Each client assisted is
required to sign a disclosure form confirming the limited nature of
representation to comply with RPC 1.2(c).
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Rule 1.2
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Scope of the Representation and the Allocation of Authority
between the Lawyer and Client
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(c)
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A lawyer may limit the scope of a client’s representation if the
limitation is reasonable under the circumstances and the client gives
consent, preferably in writing, after consultation.
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COMMENTS
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Agreements Limiting the Scope of the Representation
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[7]
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The scope of services to be provided by a lawyer may be limited by
agreement with the client or by the terms under which the lawyer’s
services are made available to the client. When a lawyer has been
retained by an insurer to represent an insured, for example, the
representation may be limited to matters related to the insurance
coverage. A limited representation may be appropriate because the
client has limited objectives for the representation. In addition, the
terms upon which representation is undertaken may exclude specific
means that might otherwise be used to accomplish the client’s
objectives. Such limitations may exclude actions that the client
thinks are too costly or that the lawyer regards as repugnant or
imprudent.
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[8]
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Although this Rule affords the lawyer and client substantial latitude
to limit the representation, the limitation must be reasonable under
the circumstances. If, for example, a client’s objective is limited to
securing general information about the law the client needs in order
to handle a common and typically uncomplicated legal problem, the
lawyer and client may agree that the lawyer’s services will be
limited to a brief telephone consultation. Such a limitation,
however, would not be reasonable if the time allotted was not
sufficient to yield advice upon which the client could rely. Although
an agreement for a limited representation does not exempt a lawyer
from the duty to provide competent representation, the limitation is
a factor to be considered when determining the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the
representation. See RPC 1.1.
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The attorney may assist the client in preparing documents for filing such as a divorce complaint, summons,
protective order application, property settlement agreement or decree. The client is informed that the attorney
is not representing the client on an ongoing basis and that the limited representation is concluded when
the consultation ends. The attorney may assist the client in one or more aspects of the legal matter thereby
unbundling the legal representation. It is disclosed to the client that the attorney will not make any court
appearances.
The Pro Se Clinic’s services are provided without charge to persons unable to afford counsel. The clinic
fulfills a need within the system of justice for legal aid to poor people whose needs are not met by a legal
services or pro bono attorney accepting the case and appearing as attorney of record.
ISSUES
How may the Pro Se Clinic attorney assure that the limited
representation is reasonable under the circumstances?
May the Pro Se Clinic’s limited services be presumed reasonable?
Shall the lawyers providing services be considered to be associated
in a law firm for conflict of interest purposes?
Shall it be sufficient disclosure to the court if the Pro Se Clinic
attorney states in writing that the document was prepared with the
attorney’s assistance without an intention to become counsel of
record in the matter?
RPC 1.2(c) allows a lawyer to limit the scope of a client’s representation if the client consents and if
the limitation is reasonable under the circumstances. What is reasonable depends on the specific facts.
The primary focus in this inquiry is whether the attorney can provide competent representation despite
the limitations on the services. The question will usually become whether the client will be in a better
position with limited services than with no services.
The attorney’s assessment of the clients’ ability to represent themselves is the first step. If a client
comprehends the elements of a parenting plan form, the assistance of a lawyer in completing a plan
form is beneficial. Closely connected is the complexity of the legal matter. In a routine parenting
plan, the court will benefit from the lawyer’s limited assistance in preparing the plan.
In Colorado Bar Association Ethics Opinion 101, the Rules of Professional Conduct were applied to a
similar inquiry. The opinion states:
“Thoroughness and preparation requires the lawyer to make the factual
inquiry necessary to understand the client’s legal situation and provide
competent advice."
The nature of the required ‘thoroughness and preparation’ is not the same in every matter. As noted in
the Comment to Rule 1.1. (Comment 5. in the Tennessee RPC):
"The required attention and preparation are determined in part by what is at stake;
major litigation and complex transactions require more elaborate treatment than
matters of lesser consequence.”
The inquiring attorneys intend to advise each prospective client of the risks of the client proceeding pro
se, even with the attorney’s limited advice and assistance. The disclosures in writing signed by the
client appear to be adequate to allow limited representation by the Pro Se Clinic. RPC 1.2(c) states
that the client consent is preferably in writing, after consultation. See RPC 1.0(c) definition of “consultation”
and RPC 1.0(b) definition of “written consent.” Consent forms are useful in practice but, in
any case, a lawyer may have to supplement the form to deal with particular issues.
The attorneys request the Board to allow a presumption of reasonableness for representations under the
pilot program. The Board does not, in all probability, have such powers.
The Board presumes all attorneys will act reasonably in the conduct of their business. Given that these
services are rendered pro bono, it is unlikely that an arguable case of reasonableness would be questioned
or sanctioned.
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The Pro Se Clinic should be able to operate without being considered to be a “firm.” Comment 1. to RPC
1.10 states:
Whether two or more lawyers constitute a firm within this definition can depend on
the specific facts. For example, two practitioners who share office space and
occasionally consult or assist each other ordinarily would not be regarded as
constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be
regarded as a firm for the purposes of the Rules. The terms of any formal agreement
between associated lawyers are relevant in determining whether they are a firm, as is
the fact they have mutual access to information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the
Rule that is involved. A group of lawyers could be regarded as a firm for purposes of
the rule that the same lawyer should not represent opposing parties in litigation, while
it might not be so regarded for purposes of the rule that information acquired by one
lawyers is attributed to the other.
The Pro Se Clinic is staffed by part-time attorneys who will often be the only attorney present. By
maintaining confidentiality between themselves, by restricting access to each other’s files and by
informing clients of their non-affiliation, the attorneys should be able to avoid being considered a
“firm.” Although not required because the lawyers in the clinic are not in a firm, they may want to
consider adopting a policy that they will not oppose one another in Pro Se Clinic matters. Due to the
separation between CLC and the Pro Se Clinic as operated, Pro Se Clinic attorneys would not be considered
members of the CLC firm. The Pro Se Clinic does not have access to CLC files and vice
versa. They are located in separate offices. Pro Se Clinic attorneys and CLC attorneys do not act as
co-counsel in any matter.
Tennessee Formal Ethics Opinion 85-F-83, cites with approval a statement in ABA Informal Opinion
1444:
“Extensive undisclosed participation by a lawyer . . . that permits the litigant falsely to
appear as being without substantial professional assistance is improper.”
The opinion was under the Code of Professional Conduct, now replaced by the Rules of Professional
Conduct, but the rationale remains the same. Under RPC 8.4 an attorney may not engage in conduct
prejudicial to the administration of justice nor engage in dishonest or deceitful conduct.
Delaware State Bar Ethics Opinion 1994-2 states:
“A litigant may receive some advantages, in the form of more lenient treatment
concerning procedural matters, for example, if the tribunal perceives the litigant to be
unrepresented.”
The opinion concluded that an attorney preparing court filed documents for Pro Se litigants should disclose
participation by letter to the court and opposing counsel.
In Florida Bar Opinion 79-7 Reconsideration (February 15, 2000), the committee concluded “that
pleadings or other papers prepared by an attorney and filed with the court on behalf of a Pro Se litigant
must indicate, ‘Prepared with Assistance of Counsel.’”
Similar recommendations were made by Alaska Bar Opinion 93-1, New York City Bar Formal
Opinion 1987-2 and Virginia Legal Ethics Opinion 1127. It is our opinion that notifying the court that
counsel has assisted the Pro Se litigant without expectation that counsel will appear and represent the
client in the manner described by the inquiring attorneys is sufficient. The phrase “Prepared with
Assistance of Counsel” is recommended for inclusion on such pleadings in a prominent manner.
This 17th day of June, 2005.
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ETHICS COMMITTEE:
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Fred B. Hunt, Jr., Chair
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Gail Carr Williams
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John J. Hollins, Jr.
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Roger A. Maness
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APPROVED AND ADOPTED BY THE BOARD
