PROFESSIONALISM CORNER
Pitfalls in Limited Representation or No Good Deed Goes Unpunished
JEFFREY LAMPERT
A common scenario : a pro se litigant meets with a lawyer to discuss a pending case , but , alas , the litigant cannot meet the attorney ’ s retainer requirements . Or worse , a deadline is looming — the consultation occurs just before the twentieth [ 20th ] day to respond to process or to serve an affidavit in opposition to a Motion for Summary Judgment .
The attorney , wishing to be of assistance , prepares an affidavit , or a Motion to Dismiss , or a Motion for Extension of Time for the litigant ’ s signature and explains how to file and serve the document . The lawyer wishes the litigant well and feels satisfaction for having given back to the community .
By so doing , even without compensation , and even with the litigant ’ s understanding that no future legal services be provided , an attorney-client relationship has been forged and counsel must adhere to all ethical obligations established under the Rules Regulating The Florida Bar . Amongst them , the duties of competence ( Rule 4-1.1 ), communication ( Rule 4-1.4 ), confidentiality ( Rule 4-1.6 ), and avoidance of conflicts of interest ( Rules 4-1.7 , 4-1.9 and 4-1.10 ). See Florida Bar Ethics Opinion 79-7 ( Reconsideration ) February 15 , 2000 . ( https :// www . floridabar . org / etopinions / etopinion-79-7-rec /)
The lawyer must also fully explain the extent , scope , and consequences of the attorney-client relationship to the litigant . The Opinion arose from a written inquiry as to whether it is ethical for an attorney to prepare pleadings without signing as attorney for a party .
The Florida Bar ’ s Professional Ethics Committee responded in the affirmative , holding that there is no ethical impropriety if an attorney prepares , but does not sign the pleading which will be filed .
But wait , there is more : the Committee ’ s response proceeded to impose upon counsel an obligation that any document prepared by the lawyer for the litigant to sign and file with the Court must include a declaration that it was “ Prepared with Assistance of Counsel .”
The Opinion further cites to County Court judges ’ responses to an inquiry from the Committee that such a declaration would be of assistance to pro se litigants , particularly when the document prepared by the lawyer is more than a standard form .
The judges were also concerned that an attorney failing to include the declaration would be in violation of Rule 4-3.3 by failing to fulfill his or her duty of candor to the tribunal . The lawyer , knowing the document was destined to be filed with the Court , but not including the declaration , would in essence be allowing a misrepresentation to be made to the tribunal by falsely giving the impression the paper was prepared by the litigant and not by an attorney when in fact an attorney did prepare it .
Following issuance of the Opinion , Rule 4-1.2 was amended to read :
4-1.2 ( c ) Limitation of Objectives and Scope of Representation . If not prohibited by law or rule , a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing . If the attorney and client agree to limit the scope of the representation , the lawyer shall advise the client regarding applicability of the rule prohibiting communication with a represented person .
However , the limited scope of representation does not , unless permitted by law or rule of procedure , extend to the representation as an attorney of record in a pending action . Contrary to popular belief , the concept of limited representation of record does not exist in civil litigation .
Although proposed rule changes permitting limited representation in civil cases were frequently included in multiple 2016 and 2017 editions of The Florida Bar News , less profiled was the 2017 decision of the Florida Supreme Court declining to adopt an acrossthe-board rule under the Rules of Judicial Administration . See In re : Amendments to the Florida Rules of Judicial Administration , Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure 9.440 , 225 So . 3d 220 ( Mem ) ( Fla . 2017 ).
Currently , limited representation exists only in Probate [ Rule 5.030 ( b )], Criminal [ Rule 3.130 ( c )( 1 ) for arraignments ], and Family Law [ Rule 12.040 ] proceedings .
The effects of a so-called “ Limited ” or “ Special Appearance for the Purpose of XYZ ” in a civil action could well turn catastrophic , for both the client now having an attorney who did not intend to become , or is not able to become , fully engaged in a pending action and the attorney himself / herself , who may not find the Court involved in an action willing to allow them to withdraw , particularly very close to a scheduled event .
Jeffrey Lampert has practiced law in Palm Beach , Broward , Martin , and Saint Lucie Counties since 1979 , and focuses his practice in the areas of collections , bankruptcies , landlord-tenant FDCPA and family law .
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PBCBA BAR BULLETIN 21