Tag Archives: limited scope representation

How COVID-19 Will Change Solo and Mid-Size Law Firms

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A recent report by Clio assessing the impacts of the coronavirus on the legal industry and consumers found that the virus has created a 40 percent drop in the number of new legal matters opened per week. Almost half of the polled consumers said that if they had a legal issue, they would delay seeking legal help until after the virus subsided. Further, 22 percent of consumers indicated they were under the impression that attorneys stopped working altogether because of COVID-19.

From our friends at NW Sidebar.

This post focuses on how COVID-19 is likely to affect small to mid-size law firms. I encourage you to read the full post. Here are some key points of interest:

Life is different and also the same. Clients expect you to cater to their needs. Put yourself in their shoes and you will do well.

All Rights Reserved 2020 Beverly Michaelis

 

UTCR Amendments

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2016 features a host of normal cycle and out-of-cycle amendments to the Uniform Trial Court Rules.  All are effective August 1, 2016.  For a complete list, see the summary provided here, pages 1-5.  Key changes, including several to eCourt, are summarized below.

 eCourt

Confidential Attachments in Filings that are not Otherwise Confidential

  • If a filing is not confidential, but includes an attachment that is, file the attachment separately.  UTCR 21.040(2)(b), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.
  • Filers must designate the attachment as confidential in the eFiling system and include an appropriate description in the filing comments field. UTCR 21.040(2)(b), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Filings in Confidential Cases

  • If a case is confidential by statute or rule, documents filed in the case must not be designated as confidential.
  • However, if a particular document within a confidential case is itself confidential by statute or rule, it must be designated as such when filed.
  • For rules pertaining to Adoption Cases, see new UTCR 21.070(7).

UTCR 21.070(6), amended out-of-cycle; UTCR 21.070(7), newly added on June 15, 2016 pursuant to CJO 16-027.

Certificates of Service Incorporated with a Document Must Be Filed as a Single, Unified PDF

Certificates of Service are now part of the “single, unified PDF” requirement.  UTCR 21.040(2), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Proof of Electronic Service

The amended rule requires a dated and signed certificate of service to be incorporated at the end of any document submitted electronically.

  • If the opposing party was electronically served by the eFiling system, the certificate must state that service was accomplished at the party’s email address as recorded on the date of service in the eFiling system and need not include the party’s email address or postal address.
  • If the opposing party was not electronically served by the eFiling system, the certificate must include the postal address at which the opposing party was served or, if served by email or facsimile.

UTCR 21.100(6), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Electronic Service to Remain an Additional, Affirmative Step

The UTCR committee declined to amend UTCR 21.100 to make electronic service mandatory or to require simultaneous service by email.  See discussion, UTCRs effective August 1, 2016, pages 55-56.

Expedited Filings

A filer who submits an expedited filing must include the words “EXPEDITED CONSIDERATION REQUESTED” in the filing comments field.  The filer may “notify the court by email or telephone, as designated on the court’s judicial district website, that an expedited filing has been eFiled in the case.”  UTCR 21.070(5), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Submission of Proposed Orders and Judgments

The out-of-cycle changes to UTCR 5.100 are described in the official explanation as follows:

  • The revision to UTCR 5.100 breaks the current rule into three parts: service, objection, and submission.
  • Subsection 1 requires service on the opposing party, and an opportunity for objection, as to any proposed order or judgment unless an exception applies. The rule is no longer limited to only those proposed orders and judgments submitted “in response to a ruling of the court.”
  • The service component also sets out specific notice requirements and lengthens the time between service and submission to 10 days from 3 days (current, if opposing party represented) or from 7 days (current, if opposing party not represented).  The notice requirement specifies that an opposing party has 7 days to object, with an additional 3 days for mailing, consistently with ORCP 10 C.
  • Subsection 2 relates to objections and is new.  It requires service of a written, dated, and signed objection within 7 days of the date that the proposed order or judgment was sent to the opposing party.  The drafting party may submit the opposing party’s objection to the court or the opposing party may file an objection by an identified date.
  • The submission part (subsection (3)) retains the current certificate of service requirement and also clarifies that a proposed order or judgment subject to subsection (1) may be submitted sooner than the 7-day period for objection, if the opposing party has stipulated to or approved the order or judgment, or the opposing party has objected and the objections are resolved or ready for resolution.  Additionally, proposed orders or judgments must include a “certificate of readiness,” certifying that the proposed order or judgment is ready for judicial signature or that objections are ready for resolution, and also stating the “readiness” reason.

UTCRs effective August 1, 2016, pages 58-61.

Register of Actions – Entry Date of a Document

The following apply whether or not a document is electronically filed with the court:

  • The filing date is the date that appears in the “date column” of the Register of Actions:  “For the purpose of ORS 7.020(1) and (2), the date that a document was filed displays in the date column of the register of actions for the case in the court’s electronic case management system.”
  • The “entry date” is the date when the event is created in the Register of Actions. “For the purpose of ORS 7.020(2), entry occurs on the date an event is created in the register of actions.”

UTCR 21.060(3), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Staples and Backing Sheets Prohibited in Conventional Filings;
One Inch Margins Required

  • Pleadings and other documents submitted conventionally must be bound by paperclip or binder clip and must not contain staples.  Amended UTCR 2.010(3)(b).
  • If your document includes an attachment, the attachment must be bound in one packet to the document being filed using a paperclip or binder clip only.  Amended UTCR 2.010(3)(b).
  • The use of backing sheets is prohibited.  Amended UTCR 2.010(5).
  • All documents must have a one-inch margin on each side (except Wills and exhibits).  Amended UTCR 2.010(4)(d).

Consolidated Filings

A party filing any document applicable to more than one case must file the document in each case using existing case numbers and captions, unless otherwise ordered by the court or provided by SLR.  If filing conventionally into cases consolidated for hearing or trial, it is the filer’s responsibility to provide the trial court administrator with sufficient copies.  Amended UTCR 2.090(1).

CIFS

Access to Confidential Information Forms (CIFs) by Non-Parties

Non parties may inspect a CIF upon filing an affidavit of consent, signed and dated by the party whose information is to be inspected. The consent must state the dates during which the consent is effective.  Amended UTCR 2.130(6)(c).  Declarations under penalty of perjury may not be used in lieu of an Affidavit.  Amended UTCR 2.130(6)(d).

Use of CIFs in Additional Proceedings

Use of a CIF is now required in proceedings that are subject to the federal Violence Against Women Act (VAWA). Specifically, the amended rule adds citations to proceedings initiated under ORS 24.190, ORS 30.866, ORS 124.010, or ORS 163.763. Amended UTCR 2.130(2).

Notice of Termination, Substitution of Counsel, Application to Resign

Must now include “court contact information,” as defined in UTCR 1.110.  Amended UTCR 3.140(1).

Stipulated and Ex Parte Matters

Local judicial districts are expressly allowed to adopt an SLR designating when stipulated or ex parte matters must be filed conventionally.  Amended UTCR 5.060(1).

Trial Memoranda and Exhibits

Trial memoranda must be filed and served on the opposing party; the court may require parties to submit copies in a time and manner specified. Trial exhibits must be submitted as ordered by the court and not filed with the court.  Amended UTCR 6.050.

Jury Instructions and Verdict Forms Must Be Filed and Served

Jury instructions and verdict forms must be filed and served on the opposing party; the court may require parties to submit copies in a time and manner specified. Amended UTCR 6.060.

Dissolution of Marriage – Notices and Judgments

The notice of dissolution form required under ORS 107.092 is now available on the OJD website; filing multiple copies of the General Judgment of Dissolution is no longer required.  Amended UTCR 8.010.

Uniform Support Declarations/Affidavits Filed by DCS or DA

Uniform Support Declarations or DCS/DA affidavits must be filed and served within 30 days of service of a petition or other pleading that seeks child support or spousal support on other than a temporary basis, subject to the requirements of UTCR 8.040 or UTCR 8.050, when applicable, and in the absence of an SLR to the contrary.  Amended UTCR 8.010(6).  Also see amended UTCR 8.050(3) relating to judgment modification proceedings and amended UTCR 8.040(4) relating to Uniform Support Declarations accompanying a Motion for Temporary Support.

Limited Scope Representation in Domestic Relations Cases [New]

  • Requires attorneys who intend to appear on a limited scope basis to file and serve a Notice of Limited Scope Representation in substantially the same form as set out on the OJD website.  UTCR 8.110(2).
  • Requires attorneys who have completed all services under the Limited Scope Representation to file a Notice of Termination of Limited Scope Representation in substantially the form as set out on the Oregon Judicial Department website. UTCR 8.110(3).
  • Service in limited scope cases shall be made upon the attorney and the party represented on a limited scope basis.  [Service on the attorney ends when a Notice of Termination is filed.]  UTCR 8.110(4).

Arbitration Awards – Submission and Filing Time Extended

The time for submitting an Arbitration Award to the parties is extended from 7 to 28 days. Amended UTCR 13.210(5) and (6).  Amended UTCR 13.220 now allows for an extended filing time with the court of 42 days.

Amended Forms

The following forms were also amended:

All Rights Reserved Beverly Michaelis – 2016.

 

 

Your Engagement Letter is Not a “One Size Fits All” Bucket

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What a Good Engagement Letter Can Do

Engagement letters are an essential tool in the lawyer’s toolkit.  Done correctly, they set the stage for the lawyer-client relationship, provide clarity, and minimize misunderstandings.

The best engagement letters follow a predictable formula:

  • A specific description of the legal problems the lawyer will handle
  • A specific description of the legal problems the lawyer will not handle
  • Steps the lawyer has taken already on the prospective client’s behalf
  • Steps the lawyer will take, once engaged
  • Steps the clients must take for engagement to commence
  • Future or ongoing client responsibilities

Combine Your Fee Agreement and Engagement Letter for Maximum Effect

Ideally, the terms of engagement are wrapped into the lawyer’s fee agreement.  This simplifies the process – the client need only review a single document to know what the lawyer will do, how much it will cost, and what the client’s responsibilities are.

Create Templates for Efficiency

Practitioners can streamline the engagement process fairly easily. While some terms will vary, most of these letters contain enough boilerplate for a lawyer to benefit from creating forms or templates.  [Rewriting an engagement letter/fee agreement for each client is a real time-waster.]

Don’t Fall Into the “One Size Fits All” Bucket

Some lawyers attempt to use their engagement letter as a one size fits all bucket.  For inspiration, they look to every case where a transaction or engagement went awry and proceed to add disclaimers to ward off future problems.  For example, lawyers who handle matters where property valuation is an issue may add language to the initial engagement letter forewarning the client of the need to obtain an appraisal.

How Could this be a Bad Thing?

  • Multiple disclaimers make for longer, more complicated engagement letters and fee agreements.
  • The longer and more complicated your letters are, the more likely the client will miss the key points:  what you are going to do (or not do) and what it will cost.
  • In the end, it could all be for naught if the goal is to avoid a potential legal malpractice claim….

Which Approach is More Effective?

Lawyer 1 incorporates a disclaimer into his engagement letter forewarning the client: if property value becomes an issue in this case it will be client’s responsibility to obtain an appraisal.  Without an appraisal, client assumes the risk of under (or over) valuing said property.  Lawyer 1 proceeds with representation, relying on the disclaimer in his initial engagement letter.

Lawyer 2 limits her engagement letter to the usual points discussed at the beginning of this post.  When the value of property becomes an issue in the case, lawyer informs the client of client’s responsibility to obtain an appraisal and the risks of failing to do so.

Keep it Contemporaneous

This is a no-brainer.  Disclaimers given at the beginning of representation don’t have the same value as disclaimers given contemporaneously.  Clients need context to make sense of your warning.  At the beginning of the case, there is no context.  Even if the client nods and understands, the disclaimer in your engagement letter will be long forgotten by the time the property issue arises.

Parting Thoughts

A well-written engagement letter and fee agreement is all about balance.  Include sufficient information about the scope of your work, division of responsibilities, and what your services will cost, but don’t fall into the trap of trying to disclaim or forewarn of everything that could ever go wrong.  If helpful, consider developing a client handout that addresses common issues or questions that arise.  Give specific disclaimers and warnings contemporaneously when the client can put the information into context.

[All Rights Reserved 2015 Beverly Michaelis]

 

 

The Ethics of Unbundling

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Call it what you will: unbundling, discrete task representation, or limited-scope representation – the ethical and malpractice issues are the same.  Newly published OSB Formal Opinion No. 2011-183 solidifies the bar’s position on the subject. 

Here is what you need to know:

Oregon RPC 1.2(b) expressly permits unbundling provided:

  • The limitation is reasonable under the circumstances and
  • The client gives informed consent to the limited-scope representation

When is Limited Scope Representation “Reasonable?”

To answer this question, OSB Formal Opinion No. 2011-183 points to commentary from the ABA model rule.  Factors include:

  • The client’s objectives (limited to securing general information about the law?)
  • The nature of the legal problem (common situation, typically uncomplicated?)
  • The time allotted (is it sufficient to yield advice upon which the client could rely?)

What About Informed Consent?

  • Explain the risks of discrete task representation with an eye toward the complexity of the matter and the client’s ability to identify, appreciate or address the critical issues that may arise
  • Review the limits of Oregon RPC 4.2 (communication with represented parties).  Existence of a limited-scope representation agreement may not invoke this rule.  Therefore, if the client “wants the protection of communication only through the lawyer on some or all issues, then the lawyer should be sure to communicate clearly to opposing counsel the scope of the limited representation and the extent to which communications are to be directed through the lawyer.”  OSB Formal Opinion No. 2011-183. (See Footnote 6.)
  • State as fully as possible what you will not do for the client
  • Offer “reasonably available alternatives” such as having a lawyer involved “in each material aspect of the legal matter.”  OSB Formal Opinion No. 2011-183.
  • Get it in writing!   Obtaining the client’s written consent is not required by Oregon RPC 1.2(b), but it is strongly encouraged and will help avoid potential misunderstandings later.  (Remember – certain fee arrangements must be in writing.  Contingent and earned-upon-receipt fees come to mind.)

Are There Any Other Considerations?

Limiting the scope of representation does not limit the scope of your ethical duties to your client.  Lawyers who unbundle services must still provide competent representation, communicate adequately with their clients, avoid neglecting matters entrusted to them, and screen for conflicts of interest.

In addition, lawyers who provide unbundled services must conform with applicable law or procedural requirements, such as submitting a Certificate of Document Preparation pursuant to UTCR 2.010(7) when  necessary.

What is My Malpractice Exposure?

For an overview of the malpractice risks involved in unbundling legal services in a virtual practice setting, read my post.  For a complete discussion of the subject, see Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs.

Copyright 2011 Beverly Michaelis