Date of this Version
OHIO STATE JOURNAL ON DISPUTE RESOLUTION 28:3 (2013), pp. 659-708
Limited scope attorneys specializing in alternative dispute resolution ("ADR") procedures could help clients like these achieve their goals and resolve their disputes in a timely manner. If more attorneys would consider providing these types of limited services, additional clients (i.e. people considered "nobody's clients" now) could be served in the way that matters most to them. This Article suggests a new model for attorney representation based on the combined use of limited scope representation and ADR processes to give otherwise unrepresented parties greater access to justice. Although none of these three concepts (i.e., access to justice, unbundled services, and ADR) are new, tying them together in this manner has yet to be considered in the scholarly literature. In addition to providing new resources for clients, attorneys could expand their practices, gain additional clients, and increase their revenue, all while helping represent the otherwise unrepresentable. As discussed in more detail below, these ideas could also alleviate the court systems as well as provide additional avenues for law schools and legal aid providers to provide services. Limited scope representation is well within the bounds of the ethical practice of law. The Model Rules of Professional Conduct have long allowed attorneys and clients to limit the scope of the representation. Model Rule of Professional Conduct 1.2(c) provides: "(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." A concise definition of "limited scope representation" is hiring an attorney to perform a "discrete task" and nothing else. Recently, the ABA endorsed limited-scope representation, or "unbundling," in a Resolution, encouraging more attorneys to engage in this practice." Prior to this Article, most clients, attorneys, and scholars considered those "discrete tasks" to be litigation tasks, such as document drafting and hearing appearances. This Article shows how that type of thinking is short-sighted (perhaps even misguided) and should be broadened to better serve clients and client interests. Part II of this Article considers the inefficiencies present in the area of pro se representations, and the benefits of working with counsel, even on a limited basis. Part III of this Article discusses just how the themes of ADR, limited scope representation, and access to justice can be woven together as a new way to practice law. Part IV presents concrete examples of the types of representation services that could be offered on a limited scope basis. Part V discusses the policy reasons supporting and challenging this proposal in the views of the many different stakeholders at issue, including potential clients, attorneys, courts, and pro bono service providers, including law college clinics. Finally, Part VI concludes by tying together the ideas of limited scope representation, alternative dispute resolution and access to justice. This Article suggests that courts, lawyers, and law schools begin to offer these services more regularly, ultimately creating additional consumer awareness on the part of potential clients. The ultimate goal is to provide more services to those who cannot otherwise afford them, to increase attorney revenue, and to reduce court congestion all at the same time.