Sue Talia Comments on Montana’s New Unbundling Rules as National Model

As many of you know, Sue Talia  is one of the country’s leading experts on unbundling, and a frequent speaker on the topic.  We are proud to share her analysis of the significance of the  new Montana unbundling rules.

MONTANA’S NEWLY APPROVED MODIFICATIONS TO THEIR RULES

SET THE GOLD STANDARD FOR LIMITED SCOPE RULES OF COURT

On  March 15, 2011 the Montana Supreme Court approved changes to their Rules of Professional Conduct (Rules 1.2, 4.2 and 4.3),  and Rules of Civil Procedure (new Rules 4.2 and 4.3 and amendment to Rule 11). The changes are designed to facilitate limited scope representation (“unbundling”). While nearly forty states have adopted some form of the ABA’s Model Rule 1.2(c), or similar rules which authorize unbundling, the Montana task force has gone farther, fleshing out the standard of care, and addressing limited scope representation in the context of their competence rules, rules governing communication with represented parties, and Rule 11 considerations.

The Montana rules, which borrowed heavily from Washington, Wyoming and Iowa, serve as a model for rule amendments in other states. Some of the states which were early to catch the limited scope train had little practical experience on which to base their deliberations. Many anticipated problems and potential abuses which didn’t materialize, while offering limited guidance on the practical day to day issues limited scope raises for attorneys. The Montana rules go far beyond the early iterations to recognize not only the realities but the nuances of the practice.

It isn’t enough for a rule to say that limited scope is permissible in a jurisdiction. Lawyers need guidance on how it works in practice. The ABA Model Rule requires that the limitation on scope be reasonable under the circumstances and that the client gives informed consent. In my opinion, that doesn’t go far enough either. In order to protect both the lawyer and the consumer, the limitation in scope should also be in writing. Montana’s rule does that.

Equally importantly, Montana’s Rule of Professional Conduct 1.2(c) specifically references the evolving delivery models for limited scope, and refers to the various forms it might take: telephone consultation, legal services, limited court appointments and the like in addition to traditional private representation. Most state’s rules are silent on these issues, and I would strongly recommend amending them to reflect the changing delivery models being developed by lawyers and demanded by the public. Lawyers are inherently conservative when it comes to ethics, liability and discipline issues, and the Montana form of Rule 1.2(c) goes far to give them not only the permission, but the practical guidance they need to have the confidence that they are acting in a professionally appropriate way which will not expose them to increased risk of liability or discipline.

However, Montana didn’t just stop at fleshing out 1.2(c). They also looked to their other rules to make them both clearer and consistent. They added a provision to Rule 1.1 on Competence that defines competence as “the knowledge, skill, thoroughness, and preparation reasonably necessary for the limited representation.”

Then they went several steps further and amended their Rules of Professional Conduct 4.2 and 4.3, regarding communications with represented counsel and dealing with unrepresented parties, again giving lawyers valuable guidance in the application of limited scope to these important practical issues.

On the Civil Procedure side, the amendments to Rule 4.2 addresses the sometimes thorny issue of whether limited representation constitutes a general appearance, with all its complications (it doesn’t in Montana), and who should be served when an attorney is making a limited appearance for a client. Most states’ rules are silent on service issues, which often causes confusion as a lawyer who is opposing a limited scope attorney wrestles with how to effect proper service without serving everyone with everything.

My favorite part of the new Civil Procedure Rule 4.3 is the simplified procedure for a notice of limited appearance, followed by the filing of a notice of completion at the conclusion of the limited appearance. While most limited scope arrangements do not require an attorney to physically appear in court, this simplified procedure is of real importance in giving lawyers the confidence to offer these services without fear that they will have to face an expensive and cumbersome process, including court permission, to withdraw at the end of the agreed services. Contrast the extremely cumbersome and unwieldy process contained in California’s Rules 5.71 and, to a lesser extent, Rule. 3.36(c).

Finally, Montana knocked down the straw man. The possibility of potential Rule 11 violations is often cited as a reason why stand alone document assistance shouldn’t be allowed or won’t work in practice. Taking the common sense approach, Montana’s Rule 11 provides that when a lawyer’s services are limited to document assistance, that lawyer need not sign the pleading. More importantly, it provides that the lawyer can rely on the client’s representation of the facts, unless the lawyer has reason to believe them untrue, without the necessity of conducting a protracted and expensive independent review, which would effectively defeat the purpose of the document assistance.

I strongly recommend the amended Montana rules to any jurisdictions which are considering issuing unbundling rules for the first time, or expanding existing rules, and offer my sincere compliments to the Montana Supreme Court Equal Justice Task Force, the Montana Supreme Court Commission on Self-Represented Litigants, the State Bar Access to Justice Committee, and the Supreme Court itself for a fine and thoughtful piece of work. Kudos to all who worked so hard on this.

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And, thanks from this blog to Sue Talia for this analysis.

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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