How Limited Is Your Limited Scope Representation?
LACBA Update, November 2012
By Wendy Wen Yun Chang, partner, Hinshaw & Culbertson, LLP, and member, LACBA Professional Responsibility and Ethics Committee. She is the incoming vice chair of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. She can be reached at email@example.com. The opinions expressed are her own.
Whether for reasons of economy, necessity, strategy, or practicality, almost every attorney will, at some point, limit the scope of his or her representation of a particular client matter. In our current legal environment, due to increasing technical advances, practice and industry specialization, economic mandate, and/or client request, the demand or need to limit the scope of one’s representation is becoming increasingly common and in some instances may be required. It can be a source of unwelcome surprise to the attorney in an after-the-fact dispute that the law may well find the scope of legal services to be determined by factors beyond what the attorney thought was the initial intention of the parties. It is distressingly easy for a misunderstanding to occur between an attorney and client about scope of services, sincerely or even conveniently intentional, especially after a problem has arisen. While the law is not new, in the current legal environment where it is becoming increasingly common, the law governing limited scope engagements bears review.1
Except for those situations where an attorney is appointed by the court, the attorney-client relationship is created by some form of contract, express or implied, formal or informal.2 An attorney's duties to the client depend on not only the existence of an attorney-client relationship but also the scope of the duties agreed to under contract.3 Thus, an attorney may place reasonable limitations on the scope of legal services by contract under certain conditions.4 Indeed, at times a limited scope of services may be required if the engagement requires legal services beyond the attorney’s learning and skill.
In 1995 and again in 1999, the Los Angeles County Bar Association Professional Responsibility and Ethics Committee opined that an attorney could limit the scope of representation of a litigation client so long as the limited scope of the representation was fully explained and the client consents to it.5 This rule applies equally in a nonlitigation setting. The limitation on scope must also be made expressly clear.6 For example, if the intent is to handle the defense of litigation over a piece of property, the engagement letter should say just that and not something broader such as “all legal issues relating to Property.”
An attorney also has a duty to alert the client to legal problems that are reasonably apparent even though they fall outside the scope of retention and to inform the client that the limitations on the representation create the possible need to obtain additional advice, including advice on issues collateral to the representation.7
In Nichols v. Keller, 15 Cal. App. 4th 1672 (1993), the client sued lawyers for failing to advise him that he had potential claims against third parties, claims that were not within the agreed scope of engagement. The attorneys argued that they had no duty to advise the client or pursue those claims. The court of appeal disagreed:
Generally speaking, a workers' compensation attorney should be able to limit the retention to the compensation claim if the client is cautioned (1) there may be other remedies which the attorney will not investigate, and (2) other counsel should be consulted on such matters. However, even when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention. The rationale is that, as between the lay client and the attorney, the latter is more qualified to recognize and analyze the client's legal needs. The attorney need not represent the client on such matters. Nevertheless, the attorney should inform the client of the limitations of the attorney's representation and of the possible need for other counsel.8
Nichols was applied in Janik v. Rudy, Exelrod & Zieff, where the claimed limited “scope” of duty was expressly defined in a court order certifying class claims. The court of appeal found that notwithstanding the court order, the attorneys owed the client a duty to at least consider and advise the client if there were apparent related matters that the client was overlooking and that should be pursued to avoid prejudicing the client's interests.9 Finding that the client could reasonably expect her attorney to do so, such alert by the attorney would allow the client to consider whether to expand the scope or pursue the claims in some other manner.10 A failure to advise of such claims can constitute both a breach of the standard of care and a breach of the duty of competence.11
Finally, all general rules of professional responsibility continue to govern an attorney’s engagement under limited scope. The attorney must be able to provide the legal services competently under the limited scope, or he or she may not undertake it in such fashion.12 The attorney must observe conflicts and confidentiality restrictions, may not improperly withdraw from the engagement, and may not make an agreement to prospectively limit the attorney’s professional liability.13
There are good reasons that the full scope of a claim may not or cannot be pursued by a particular attorney. However, such scope of limitation must be expressly stated, disclosed to, and consented to by the client, including the express risks of such limitation.
1 Legal issues relating to state court rules surrounding limited scope engagements before a tribunal (see, e.g., Cal. R. Ct. 3.35-3.37 (civil matters), and R. 5.70-5.71 (family law)) are not addressed herein.
2 Fox v. Pollack, 181 Cal. App. 3d 954, 959 (1986).
3 Nichols v. Keller, 15 Cal. App. 4th 1672, 1684 (1993).
4 Janik v. Rudy, Exelrod & Zieff, 119 Cal. App. 4th 930, 940 (2004); see also Ethics Primer on Limited Scope Representation, Ethics Hotliner (Fall 2004), available at http://ethics.calbar.ca.gov/Publications/HotlinerNews.aspx.
5 Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 483 (“There is nothing per se unethical in an attorney limiting the professional engagement to the consulting, counseling, and guiding self representing lay persons in litigation matters, provided that the client is fully informed and expressly consents to the representation"); see also Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 502 (quoting Formal Op. No. 483).
6 Nichols, 15 Cal. App. 4th at 1687; Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 502.
8 Nichols, 15 Cal. App. 4th at 1684.
9 Id. at 758.
10 Id. at 759.
11 Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 502 (citing Cal. Rules of Prof'l Conduct R. 3-110(A)).
12 Cal. Rules of Prof'l Conduct R. 3-110(A). All rules references herein, unless otherwise noted, are to the California Rules of Professional Conduct. See also In the Matter of Valinoti (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 498, 521 (“there is no ‘limited’ appearance of counsel in immigration proceedings”).
13 Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 502 (citing, among other authorities, Cal. Rules of Prof'l Conduct R. 3-110, 3-300, 3-310, 3-400, and 3-700).