Unbundled Legal Services
New York Courts have joined the growing ranks of jurisdictions explicitly permitting limited scope representation in civil litigation. On Friday, Governor Kathy Hochul signed Senate Bill S6807, officially amending CPLR §321 to set forth the procedure for limited scope representation.
History of Limited Scope Representation
The benefits of limited scope representation are extensive and have been extolled by judges and practitioners alike. In 2016, the New York State Bar Association issued a report supporting New York’s adoption in the context of civil litigation.
The need for, and benefit of, limited scope representation was so apparent that it existed in nearly all forms of practice except except formal appearances before a tribunal. Clients could retain attorneys to handle discrete tasks like drafting contracts, negotiating settlements, and offering legal advice without appearing before the court. Workarounds also existed, including “ghost writing” legal papers and pro bono representation from legal clinics on a limited basis.
How Does It Work?
CPLR §321 is amended to add subdivision (d) which provides:
1. An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes. Whenever an attorney appears for limited purposes, a notice of limited scope appearance shall be filed in addition to any self-represented appearance that the party may have already filed with the court. The notice of limited scope appearance shall be signed by the attorney entering the limited scope appearance and shall define the purposes for which the attorney is appearing. Upon such filing, and unless otherwise directed by the court, the attorney shall be entitled to appear for the defined purposes.
2. Unless otherwise directed by the court upon a finding of extraordinary circumstances and for good cause shown, upon completion of the purposes for which the attorney has filed a limited scope appearance, the attorney shall file a notice of completion of limited scope appearance which shall constitute the attorney’s withdrawal from the action or proceeding.
The attorney agrees to the limited scope retainer with a client. The attorney files a limited scope appearance which describes the specific limitation of their appearance. The attorney completes their discrete task and files a notice of completion at which point they are withdrawn as counsel of record.
Attorneys are of course reminded to observe all ethical considerations, including obtaining informed consent pursuant to Rule 1.2, Comment 6A.
What Are The Benefits?
Limited scope representation significantly expands access to legal representation in civil litigation by enabling clients to budget for discrete tasks instead of retaining an attorney on an uncapped hourly retainer to handle all aspects of the action.
An attorney who is the counsel of record is on the hook for everything that happens in the case, even if the client does not want to pay for it. Because of this reality, an attorney is often advised to withdraw as counsel if a client refuses to pay for an action that the attorney believes would constitute malpractice if not taken. This reality caused many attorneys to be unwilling to represent clients who could not afford full service representation, and even if the attorney and the client both wanted the attorney to be paid only for a discrete task such as appearing to negotiate a settlement in landlord-tenant court, it was not permitted. The result? Thousands of unrepresented parties. Especially in landlord-tenant and family court.
Clients and attorneys can rejoice in their new-found flexibility and freedom to agree to representation that makes sense for both attorney and client alike.