The Ethics of Unbundling

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

The Art of CYA

What do you do when a client rejects your advice?  This can be a very frustrating situation, especially if you know the client’s action (or inaction) will result in dire consequences.

If you cannot persuade the client otherwise, document the client’s decision with a CYA letter.  Make sure the client understands:

  • The status of the client’s case
  • The advice given
  • The action to be taken
  • The potential consequences that can result from each course of action

If you advise “X” and the client chooses “Y,” specifically document the client’s decision in your CYA letter.  Here is an example:

In accordance with your instructions, I prepared a Last Will and Testament which you signed on January 31, 2011.  As you know from our discussions, I do not consider this to be an adequate estate plan for your needs.  Your Will does not address the tax consequences arising from (include appropriate details) nor does it (describe any other issues the Will does not address).

I have recommended that you prepare (describe documents) in order to ensure a well-rounded estate plan that accomplishes (describe results or benefits that would apply if client allowed you to prepare all recommended documents).  Preparing (describe documents) could potentially save your estate (estimated savings) in taxes.  You have elected not to prepare (describe documents), and I am abiding by your wishes.

If you have a change of heart and decide that you wish to go forward with (describe documents), please let me know.  As we have discussed, I estimate this additional work could be completed in approximately (estimate of hours) at a cost of $(estimated cost).  Unless I hear differently from you, this concludes my services and I will be closing my file on this matter.  Thank you for allowing me to be of assistance to you. 

Letters eliminate “He Said/She Said” disputes and protect you in the event of a claim.  They take time to write, but are well worth the effort.

Copyright 2011 Beverly Michaelis

Is the Filing Fee Nightmare Over?

The OSB Court Fees Task Force has published an Initial Report with short term recommendations regarding 2009 HB 2287.  Having fielded many a call on this subject, I agree with the conclusion of the task force:  reform is badly needed.  The current fee structure is complexconfusing, and in some cases, unfair.  Here is an excerpt:

General Findings

  • The courts are a critically important, constitutionally mandated core function of government.
  • Courts must be open and accessible to all Oregonians.
  • The OSB’s highest legislative priority is open and accessible courts.
  • Keeping courts open and accessible requires stable and adequate funding.

Specific Findings

  • The current statutory fee structure is confusing and complex, even to experienced practitioners.
  • Any changes to the fee structure must not impede reasonable access to justice, including access by indigent persons, unrepresented litigants, and middle-income Oregonians.
  • The legislature should simplify the current fee structure to make it more predictable and more uniform.
  • Any changes to the fee system must maintain adequate funding for services critical to the justice system, such as Legal Aid services.
  • Some of the fees enacted in 2009 HB 2287 have created unintended and high transaction costs and/or unduly impaired access to justice, and should be modified or allowed to sunset.
  • Court-imposed financial obligations upon conviction of a crime or offense are an important part of the accountability process of the justice system.
  • Much of the liquidated and delinquent court-imposed debt cannot be collected and/or is owed to victims of crime, and does not represent a reasonable opportunity to increase revenue to the state or local governments.

Recommendations

  • Consolidate many existing fees that occur in the lifetime of a case (e.g., ex parte order and judgment fee, and fees for routine motions) into the filing and first response fees.
  • Enact consistent fee amounts for motions and other individual fees, so they are consistent within and among different types of cases.
  • Modify the following specific fees:
    • Sunset the $10 ex parte order and judgment fee. This fee imposes excessive administration costs on litigants and the courts.
    • Establish a statutory cap on fees in cases involving multiple parties and/or large prayer amounts. The current structure has created excessive fees in some cases.
    • Sunset the expunction fee in cases where an arrest occurred but no conviction resulted. Imposing a substantial fee in these cases does not reflect court workload and imposes an unfair burden on persons not convicted of a crime.
    • Restore a statutory limit on the amount retained from release security deposits, but at a higher limit than the previous $200 limit.
    • Modify the mediation/conciliation fee and law library fee to a fixed amount set by statute, rather than a percentage of the filing fee set by individual counties.
  • The legislature should encourage efficient, effective, and fair collection of court-imposed financial obligations, maintain long-term judgments for accountability, and develop a mechanism to classify and categorize debt that can reasonably be expected to be collected.

(Emphasis supplied.)

The report continues with findings and recommendations specific to probate, family law, civil practice, and criminal practice.

The reforms proposed by the OSB Court Fees Task Force will be welcomed by everyone – court staff, lawyers, and parties – all of whom have struggled with the fee structure created by HB 2287.

Copyright 2010 Beverly Michaelis

Filing Fee Confusion Abounds

In December, I wrote about the new filing fee requirements under HB 2287.  Since that time Tanya Hanson and I have had the opportunity to work with staff at the Multnomah County Civil Department to hone the document that was first posted on our Web site

If you are confused or frustrated you are not alone. 

Here are four examples we hope will help:

For Actions With Fees Set Under ORS 21.110 (2) – Do Not Use The Calculator

If your case qualifies for the reduced filing fee provided by ORS 21.110 (2) – which applies to some specific types of claims for relief that involve recovery amounts of $10,000 or less – you are exempt from the additional party fee, and you do not need to use the fee calculator. The filing fee for civil actions which qualify under ORS 21.110 (2) is $137. There is no ORS 21.110 (1) (b) “additional party” fee; this exception to the additional party fee is provided by Chief Justice Order 09-052.

Another difference under HB 2287 for these “under $10,000” cases concerns multiple defendants.  If there are multiple defendants, the defendants appearing jointly in an action filed under ORS 21.110 (2) may pay only a single appearance fee.

For Actions With Fees Set Under ORS 21.110 (1) – Always Use The Calculator

For every other type of civil action, whether seeking recovery of a monetary amount or nonmonetary relief, the claim has a base fee of $197 for monetary claims up to $49,999, and, for monetary claims of $50,000 or more, there is a graduated fee scale depending on the total amount of the monetary claims in the case. There is also an “additional party” fee under ORS 21.110 (1) (b) for these cases; the additional party fee applies to every additional party beyond one plaintiff and one defendant and parties appearing jointly must each pay a filing or appearance fee. For all of these cases parties should use the Oregon Judicial Department’s Fee Calculator when filing or appearing in the action.

To learn more, read Understanding the New Filing Fee Requirements in Civil Cases (HB 2287).  (Also posted on the PLF Web site.  Select In Brief , then choose the December 2009 issue.)

Copyright Beverly Michaelis 2010

New Filing Fee Requirements

The new filing fee requirements imposed by HB 2287 have been a source of confusion and consternation to Oregon lawyers.  On December 9, 2009, the Multnomah Bar Association sponsored a CLE entitled “Fees – Clackamas, Multnomah & Washington County:  What, When, and How?”  The program provided useful tips and highlighted a number of potential traps for the unwary practitioner.  Here is a summary:

Civil Pleading Captions

ORS 21.110(7) now requires that civil pleading captions include a statement of the amount claimed.  This is a new requirement for cases with a claim of $50,000 or more.  If your complaint does not include this information in the caption, it can be rejected and you may miss a filing deadline. 

Using the Circuit Court Filing Fee and Additional Party Fee Calculator

Section 1 of the fee calculator is for the exclusive use of plaintiffs and petitioners.  Use Section 2 if you are a defendant or respondent.

Fees are based on the prayer amount, the total number of petitioners/plaintiffs, and the total number of defendants/respondents.  Here are three examples:

In the second example, the fees of plaintiff Smith are $867 calculated as follows: $335 for the first initiating party, $335 for the second initiating party, plus $197 for the additional defendant.  (There is no fee for the first defendant.) 

If plaintiff Jones is represented separately, plaintiff Jones also owes $867.  If plaintiffs Smith and Jones are jointly represented, Smith pays $867 as the first initiating party; Jones owes nothing.

The total due from each defendant is $335.  If defendants ABC and 123 Realty are jointly represented, the total first appearance fee is $670.  If the first appearance is a Motion (not an Answer), an additional fee is due. 

Note: Parties filing a third-party complaint will pay a separate fee from their original appearance as a plaintiff or defendant.

The Oregon Judicial Department (OJD) fee calculator does not recognize decimal places.  When calculating your fee, enter your prayer amount in round numbers. 

Chief Justice Order 09-052 establishes exemptions from certain statutory fees.  For example, a party may request a hardship exemption from the additional party fee when more than five parties are named in the pleading.  Exemptions are granted on an individual basis.  (Parties must apply separately for relief.)  When requesting an exemption, come to ex parte prepared: bring your initiating document or first appearance document and ex parte Order.  Pay the ex parte fee.  Appear at ex parte.  If relief is granted, take the signed ex parte Order to the cashier, file your initiating document or appearance, and pay the reduced fee.

If you are paying multiple fees on the same case or separate fees for multiple parties, consider issuing separate checks.  This will make it easier for the court clerk to properly apply your payments. 

Fee Schedules

Appellate court fees are available here.

Circuit court fees vary by county.  Use the “Select a Court” option on the OJD Web site to find the fee schedule for your specific jurisdiction.

Effective Date

The fee changes in HB 2287 apply to:

  • Civil actions, suits, and proceedings filed on or after October 1, 2009, and before July 1, 2011. 
  • Hearing and trial requests filed on or after October 1, 2009.
  • First and annual accountings filed in probate on or after October 1, 2009.

If a plaintiff filed an action before October 1, 2009, then the pre-October 1 fees apply if and when the defendant files an appearance.  However, third-party complaint fees apply to third-party complaints and appearances filed on or after October 1, 2009.

Check the language of HB 2287 if in doubt.

Overdue, Overpaid, Underpaid, Mistaken, or Missing Fees

Parties who did not pay a first appearance fee and are now appearing in court for the time on a post-judgment matter or at ex parte will be required to pay the applicable post-judgment or ex parte fees in addition to the applicable first appearance fee. 

All documents requiring a fee must be accompanied by the correct payment.

  • If you mail a complaint or first appearance to the court and underpay the fee, your document may be shredded without notice and you may miss a filing deadline. 
  • If a party pays a fee for which it is not responsible, it may not be refunded.
  • If a fee is overpaid, it may not be refunded. 
  • If no fee is paid, your document may be shredded without notice. 

Do not rely on the court to give you a courtesy call or return rejected documents by mail.  Courts are understaffed and underbudgeted, even with the new fee structure.  Instead, take initiative.  Check the fee schedule on the court’s Web site.  When filing remotely, always allow extra time to recover from possible errors – like submitting an incorrect fee – and enter a followup date on your calendar to verify that the filing was received and processed before the ultimate deadline.

Remember to be patient and courteous toward court staff.  The new filing fee requirements are a challenge for everyone.

Speed-pass and Form of Payment

Presently, courts cannot accept fees in advance or issue tickets, credits, or other proof of payment to be applied toward future filing fees.  All fees must be paid when they are incurred.  Multnomah County is considering the possibility of a speed-pass or other system that would allow advance payment.

The form of payment varies from court to court.  Some take credit cards; some do not.  For others, accepting credit cards is a work in progress.  If you are unsure what form of payment is acceptable in your jurisdiction, call the clerk’s office or check the court’s Web site.

Ex Parte

If you are appearing at ex parte in person, allow ample time to pay fees in advance.  Note:  ex parte times in Clackamas County have recently changed.  In Clackamas County, clerks are available in the courtroom to process ex parte payments.  In Multnomah County, all fees must be paid in advance at the cashier’s window.  Each court is different.  Check the court’s Web site or call beforehand if you are unsure of the payment procedure.

If you are submitting an ex parte Motion and Order by mail, your check must accompany the ex parte OrderIf no payment is received, your Order is subject to shredding without notice.  Although some courts have generously returned documents in the past, most can no longer afford to do so.

  • Come to ex parte with all copies you wish to be conformed. 
  • If you want the judge to have the court file available to him or her at the time of ex parte, make appropriate arrangements in advance.
  • Ex parte fees must be paid even if the court does not sign your Order. 
  • Ex parte fees must be paid even if the motion is stipulated.
  • Some matters are exempt from ex parte fees.

Motion Practice

Fees for Motions on civil proceedings are always due at the time of filing.  If the Motion is contested and results in an Order, there is no additional fee due at the time of signing.  If the Motion is contested and results in a Judgment, an additional fee will be due at the time of signing.

Miscellaneous

  • Trial fees are paid by the petitioner or plaintiff.
  • Settlement fees must be paid by in advance by each party attending a settlement conference.  “Party” includes the original plaintiff or petitioner, original defendant or respondent, third-party plaintiffs, third-party defendants, and trustees.  Guardians ad litem are not a “party” for settlement fee purposes.
  • It is unlikely that fees for ex parte Orders, Judgments, and similar documents are recoverable by the prevailing party. 
  • Pro Tem judges cannot sign the prevailing party’s Judgment on a Motion for Summary Judgment until the fee is paid.  In Multnomah County, attorneys are advised to take the Pro Tem Judge’s Letter Opinion to the cashier, pay the appropriate fee, then submit the Judgment for signature along with proof of payment. 

For those who missed it, “Fees – Clackamas, Multnomah & Washington County:  What, When, and How?” should be available shortly as a digital download on the MBA’s CLE Web site.

Copyright 2009 Beverly Michaelis

My sincere thanks to PLF Loss Prevention Attorney Tanya Hanson for her editing skills and contributions to this post.