The Oregon legal community has long been aware of the access to justice gap between the need and actual delivery of free or affordable legal services for low-income residents.¹ One proposed solution to the access to justice gap is increasing the availability of limited scope services, sometimes called “unbundled” legal services.
The discussion of limited scope services seemingly began in Oregon at the end of the 20th century.² Since then, awareness of the concept has steadily grown in the Oregon legal community.³ Rules concerning limited scope services have been steadily added to Oregon’s Uniform Trial Court Rules and the Oregon Rules of Professional Conduct.⁴ However, Oregon attorneys providing limited scope services appears to still be somewhat rare.
The mission of The Commons Law Center is to revolutionize access to and delivery of basic legal services, information, and support for underserved people. The Commons provides sliding-scale legal services to clients who live below 400% of the poverty level.
The Commons began a family law legal services program in 2018, and the program grew exponentially to become The Commons’ most accessed legal program. In addition to full scope representation services, the family law legal service program also delivered many 1-hour consultations to help people navigate the family law system on their own.
During the first year of providing family law services, The Commons recognized that there were still many people who could not afford to hire a full scope lawyer, even at sliding-scale rates, but who wanted more assistance than could be given in a 1-hour consultation. The Commons identified limited scope services as a potential solution to expanding legal assistance to those who could not afford full scope representation.
This paper briefly analyzes the Oregon rules and laws that apply to limited scope services and identifies best practices, summarizes The Commons’ development of a limited scope services program, and reflects on some of the challenges experienced during the process. The intent of this paper is to afford other Oregon attorneys the opportunity to learn from The Commons’ research and experiences and to implement limited scope services programs of their own.
Oregon Rules & Laws Applicable to Limited Scope Legal Services
An attorney providing limited scope services must still comply with all applicable laws and procedural requirements.⁵ Some Oregon rules specifically address limited scope services, whereas others affect the delivery of such services tangentially or practically. An Oregon attorney (or law firm) who wants to provide limited scope services should become familiar with how Oregon law and procedural rules apply. Below is a summary of the applicable laws and rules that The Commons has identified, how they apply to providing limited scope services, and recommended best practices.
The Requirements for Limited Scope Representation
The Oregon Rules of Professional Conduct specifically authorize limiting the scope of legal representation as long as “the limitation is reasonable under the circumstances and the client gives informed consent.”⁶ Attorneys may thus limit the scope of their representation to handling only certain matters (such as drafting pleadings), aspects, or issues.⁷
Regarding reasonableness, an attorney is still required to provide competent representation although they are limiting the scope of their representation. The limited scope must not be so limited that it prevents the attorney from providing competent advice or product.⁸ This is largely a subjective determination, and attorneys should be vigilant in assuring that the limited scope arrangement is reasonable in light of the complexities of the matter, parties involved, and stage of proceedings.
“Informed consent” is defined as “[T]he agreement by a person to a proposed course of conduct after the attorney has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”⁹ The risks of limited scope services include that, for issues or stages outside of the limited scope representation, “the client may have difficulty identifying, appreciating, or addressing critical issues when proceeding without legal counsel.” ¹⁰ Other potential risks are that the client will likely be responsible for all communications with the other party or the other party’s attorney, understanding and complying with procedural rules and courtroom procedures, and communicating with the Court. ¹¹ In general, the “reasonably available alternative” to limited scope representation is full scope representation. ¹²
In order to give informed consent to engage in limited scope representation, the client must first be fully advised of the risks and available alternatives. It is important that the division of responsibilities is also clearly communicated to the client, i.e., what services the attorney will or will not provide.¹³ The best practice for “informed consent” is to discuss these issues and have the client sign a written engagement letter that specifically describes the scope of representation, how the fee is computed, what work shall be performed by the attorney, and what the client will otherwise be responsible
for. ¹⁴ ²
Fees for Limited Scope Representation
Generally, the attraction of limited scope representation is that it allows an attorney to offer legal services for a fixed-fee. The Oregon Rules of Professional Conduct do not prohibit fixed-fee agreements. ¹⁵ However, case law provides that fixed-fee agreements cannot be excessive or unreasonable. ¹⁶
Additionally, fixed-fees can be deemed “earned on receipt” so long as there is a written agreement signed by the client which explains that the funds will not be placed into the attorney trust account and that the client may discharge the attorney at any time, in which case they may be entitled to a full or partial refund depending on what work has been completed. ¹⁷ If such a signed agreement exists, the funds may not be placed into the attorney’s trust account. ¹⁸ If no such agreement exists, the funds must be placed into the trust account and can only be withdrawn when earned. ¹⁹
Notices for Limited Scope Representation
In 2017, a Uniform Trial Court Rule was added creating a procedure for attorneys providing limited scope services. UTCR 5.170 applies to all “limited scope representation in civil cases . . . when an attorney intends to appear in court on behalf of a party.” ²⁰ The rule seemingly applies to both appearing physically in court or appearing through pleadings. ²¹ UTCR 5.170(2) requires an attorney providing limited scope services to file and serve “as soon as practicable” a Notice of Limited Scope Representation. After a Notice of Limited Scope Representation is filed, service of all documents shall be made upon both the limited scope attorney and the party being represented. ²² After an attorney completes all agreed upon services within the scope described in the Notice of Limited Scope Representation, the attorney must then file a Notice of Termination of Limited Scope Representation.²³ The requirement to also serve the limited scope attorney terminates after the Notice of Termination of Limited Scope Representation is filed and served or if the attorney otherwise withdraws.²⁴ Both Notices must be in substantially the same form as that set out by the Oregon Judicial Department (available at https://www.courts.oregon.gov/forms/Pages/limited-scope-representation.aspx). ²⁵
This notification helps address confusion regarding limited scope services and the question of with whom to communicate. The Oregon Rules of Professional Conduct generally prohibit attorneys from communicating with a party if the attorney has knowledge that the person is represented.²⁶ Depending on the scope of limited scope legal, as would be described in the Notice of Limited Scope Representation, direct communication with a party may not be prohibited. Even with a Notice of Limited Scope Representation, it is a best practice to also clarify the scope of the limited scope representation in writing to opposing counsel in order to avoid confusion. ²⁷
All pleadings of a party represented by an attorney of record and all pleadings prepared by an attorney must be signed by an attorney and contain the attorney’s information. ²⁸ An attorney who signs a pleading also makes certain certifications to the court, including that the allegations and factual assertions are supported by evidence. ²⁹ These rules apply to limited scope service situations as well, and therefore it is important that the attorney exercise due diligence in gathering facts even in a limited scope setting.
Previously, the Uniform Trial Court Rules allowed pleadings not bearing an attorney’s name if the pleading contained a Certificate of Document Preparation in which it could be indicated whether a party had assistance in preparing the pleading. ³⁰ However, this option was removed and no longer appears in UTCR 2.010(7). ³¹ Thus, it must be assumed that the proper procedure in all circumstances is to follow the notices procedure of limited scope representation outlined in UTCR 5.170.
Developing The Commons Law Center’s Limited Scope Family Law Services Program
In early Spring 2019, The Commons Law Center began identifying potential family law legal projects that could easily be made into limited scope services because there were clear beginning and ending points. Initial and responsive pleadings had the clearest clear boundaries and largest potential benefits for clients. Having attorney assistance in clearly communicating a party’s positions would make the party’s claims more apparent to the court and the other party at the onset. This would hopefully facilitate progressing through their case and providing clarity for potential settlement. In addition, at the time of disengagement, The Commons provides clients with guidance on how to proceed through the legal process. The Commons also explains that they’d be available thereafter to the former client for consultations or further services as needed. The Commons began compiling and analyzing data about initial pleadings previously completed for full scope clients. This data included the time spent preparing and finalizing those pleadings. We found that the most initial pleadings delivered by The Commons had been Responses to Petitions for Dissolution of Marriage. ³²
In May 2019, the Oregon Community Foundation awarded The Commons a grant to offer limited scope family law services to low-income families by researching best practices, developing a limited scope services program, and building referral partnerships with community organizations.
No substantive models of limited scope services programs were identified in Oregon. Although some attorneys or law firms advertised that they provide limited scope services, little details were provided on their. The Commons decided instead to rely on limited scope models created by out-of-state attorneys. ³³
Based on its historical data, Commons decided to first create and launch a limited scope package to deliver Responses to Petitions for Dissolution of Marriage. Package development would consist of determining the scope of services to be provided, creating a sliding-scale price sheet, drafting pleading templates for all pleadings that would be delivered as part of the package, drafting an engagement letter and disengagement/next steps letter templates, creating a “lead magnet” ³⁴ e-book, developing web pages dedicated to the package and the e-book, and creating a follow up email program to send to potential clients who downloaded the e-book.
In Fall 2019, research began into the rules and procedures applicable to limited scope services. Work also began on development of the Dissolution Response package.
First, a Dissolution Response package price sheet was created ³⁵ , followed by an engagement letter template. ³⁶ Pleadings templates were then created for Dissolution Responses for clients with and without children. In addition, templates were drafted for the two required pleadings for limited scope representation, Notice of Limited Scope Representation ³⁷ and Notice of Termination of Limited Scope Representation ³⁸ , as well as an accompanying explanatory letter ³⁹ to the court. Finally, a template for disengagement/next steps letter ⁴⁰ was drafted and existing pro se guides from the judicial community were compiled to provide at disengagement.
At the same time, an e-book was created as a lead magnet to provide free legal information and also create an advertising email campaign targeting potential clients. Work on The Commons website also began to add specific web pages for the Dissolution Response package and e-book.
The creation of other packages for initial pleadings began, including packages for Dissolution Petitions, Custody Petitions and Responses, and Modification Motions and Responses. An internal guide on how to create new limited scope packages was made to make sure all components were included in any new package. ⁴¹
The new web pages and e-book went live on The Commons’ website in Winter 2019/2020. Although limited scope services and packages were created and advertised on The Commons’ website, The Commons’ intake procedures were not altered. Prospective clients who called the office were not usually given the option of limited scope representation while on the phone, nor were limited scope packages generally promoted during initial consults. As a consequence, despite limited scope packages being ready to deliver, none were being sold.
In addition, research on applicable rules and procedures continued. Preliminary research was also initiated into acquiring and using a document automation program. The Commons’ believed that using document automation, followed by thorough review and revisions, could result in more efficiently delivering quality legal pleadings to both limited and full scope services.
For better or worse, the COVID-19 pandemic created both the opportunity and urgency to further implement The Commons’ limited scope services program. As courts restricted services and hearings, The Commons’ staff had acquired more time to spend on programmatic work. In addition, the loss of jobs and national recession resulting from the pandemic exacerbated the already dire public need for affordable legal services.
To meet this need, The Commons’ decided to focus more time and resources on implementing and promoting limited scope services. Intake procedures were altered so as to inform potential clients about the option of limited scope services up front. The Commons also decided to use the document automation program Documate. ⁴² New Lawyer Fellow, Elise Hampton, headed development of The Commons’ document automation. Limited scope pleading templates were automated to create first drafts of limited scope package pleadings. Questionnaires for limited scope clients were also created and linked to Documate, streamlining the process of accessing all factual details necessary for pleadings.
In addition, The Commons developed a plan for further public education, community outreach, and advertising. Work began to update and improve The Commons’ website. The Commons started a Blog to provide free legal information to the public, including information specifically addressing how the pandemic affected access to the legal system. The Commons’ Executive Director, Amanda Caffall, sent 55 letters and limited scope services brochures to community organizations identified as having an overlapping client base with The Commons.
Upon reviewing website data at that time, The Commons identified that the Dissolution Response e-book webpage was among the most viewed on The Commons’ website. At the time of this paper, the page has been viewed 180 times and 54 e-books have been requested and delivered. Of the people who downloaded the e-book, 9.3% have become clients. Based on this data, the publication of three more e-books was planned concerning topics that naturally correlated with limited scope package offerings.
Whether as a result of these outreach and advertising efforts or the recession constraining people’s financial resources, The Commons quickly began selling limited scope packages. As limited scope services were delivered, package templates and procedures were altered to resolve inefficiencies and increase product quality. Limited scope clients have expressed satisfaction with the services provided, and some further engaged with The Commons for full scope representation.
The Commons’ also developed during this time new limited scope packages and services to meet needs expressed by potential clients. With the closures and restrictions of courts, more potential clients began calling in need of help to resolve their cases through settlement. In response, The Commons developed a Stipulated Judgment limited scope package. The Commons also delivered settlement materials and proposals as a limited scope service to meet the needs of three clients.
The work begun in Spring 2020 continued during through the Summer. The Commons’ intake team continued to offer limited scope services to potential clients. Due to expressed need from potential clients who could not afford limited scope drafting packages, a new limited scope package was created for 1-hour consultations to review pro se pleadings and outline next steps. At the time of this paper, that package is being finalized and promoted.
By Summer 2020, all The Commons’ family law attorneys were trained on how to deliver limited scope services and create limited scope packages and began delivering limited scope services.
Challenges During Project Development & Delivery
The Commons experienced several challenges in developing a limited scope services program. Many of these challenges were solved by finding creative solutions. Other challenges did little other than create delays.
The biggest challenge was in The Commons’ staff balancing full caseloads while also developing a limited scope services program. The schedule and caseload of a family law attorney does not normally accommodate creating time for programmatic work. The imperfect solution, pre-pandemic, was to have staffers set aside entire days to focus solely on programmatic work. Unfortunately, due to caseloads and litigation schedules, this was only possible about one day per month. Far more effective was taking advantage of the lull in litigation at the onset of the COVID-19 pandemic to complete large projects.
Many of the program development tasks that took the most time were in streamlining later delivery of services. For example, creating templates and setting up document automation was very time intensive, but has ultimately ensured efficiency and quality of final product delivery. Attorneys interested in offering limited scope services will want to weigh the costs and benefits of developing limited scope materials as they go, versus creating materials in advance of product delivery.
The other biggest challenge was and continues to be convincing potential clients that limited scope services may be the best option in meeting their needs and budget. The concept of limited scope services is generally unknown to the public. The Commons soon realized that the intake and advertising process needed to include potential client education on the options available, as well as their respective costs. ⁴³
To a certain extent, affordability limits potential clients’ choices. On the other hand, prospective clients seem to want full scope representation even when they cannot afford it. This is likely due to multiple factors. First, the legal process is not easy to understand or navigate for non-attorneys. Second, parties in a family law case are often experiencing emotional distress and need a kind hand to guide them through the experience. Notwithstanding, even sliding-scale full scope representation remains financially inaccessible or unsustainable for most modest means clients.
The Commons believes that, with guidance, most people can effectively navigate the family law system without full scope representation. To improve such guidance, The Commons is incorporating and creating more educational products aimed at demystifying the legal process and empowering self-represented parties. In addition, The Commons reassures potential clients that, even if they start with a limited scope service, they can still come back later for further assistance.
The Commons developed a limited scope family law services program with the goal of increasing access to affordable legal assistance. Affordable and accessible legal assistance was already difficult to come by before the COVID-19 pandemic and resulting national recession. As the pandemic and recession continue, potential clients will have more and more financial constraints.
The Commons has successfully begun to save clients’ money by providing limited scope services. The Commons incorporated limited scope services into intake procedures at the onset of the pandemic. Since then, at the time of this paper, 67% 44 of new clients have opted for limited scope services. Of these, 20% 45 have transitioned to full scope representation for further assistance after their limited scope service was completed. 10% 46 switched to full scope representation due to a change in circumstances before their limited scope service was completed. Many of the 70% who fully disengaged after delivery of their limited scope service have expressed satisfaction.
Advance preparation and systems building streamlined how The Commons delivers limited scope services. Initial data suggests that, for certain packages, less time may be needed to complete services than initially assumed based on historical data. As further data and experience is acquired, The Commons hopes to further lower prices for limited scope service packages so as to increase affordability and accessibility. The Commons also hopes to eventually be able to offer limited scope systems to other attorneys, so as to increase the availability of such services to the public.
In addition, The Commons hopes to continue finding creative limited scope solutions to meet potential clients’ particular needs. With this flexibility, affordable limited scope services can be available to clients who might not otherwise fit into a pre-designed limited scope package. In particular, the pro se pleadings review and next steps package currently in development has the potential of meeting the most need with the lowest price tag.
Ultimately, The Commons’ development of a limited scope services program has been successful even as it has experienced challenges. With further development of the program, it is poised to become The Commons’ most popular and affordable offering. The Commons hopes the limited scope legal services program will become a model for other attorneys and law firms to incorporate into their practice.
1 See D. Michael Dale et. al., The State of Access to Justice in Oregon – Part I: Assessment of Legal Needs (March
31, 2000), https://www.osbar.org/_docs/resources/LegalNeedsreport.pdf.
2 See, e.g., Forrest S. Mosten, Unbundling of Legal Services, Or. St. B. Bull. (January 1997).
3 See, e.g., Helen Hierschbiel, The Ethics of Unbundling: How to Avoid the Land Mines of “Discrete Task
Representation,” Or. St. B. Bull. (July 2007); Amber Hollister, Unbundling Legal Services: Limiting the Scope of
Representation, Or. St. B. Bull. (July 2011); Mark Johnson Roberts, Unbundling Legal Services: New Trial Court
Rule Supports Access to Justice, Or. St. B. Bull. (January 2018).
4 See Roberts, supra note 3.
5 Oregon State Bar, Formal Op. 2011-183, n.2 (2016
6 ORPC 1.2(b).
7 Oregon State Bar, Formal Op. 2011-183 (2016).
8 See Oregon State Bar, Formal Op. 2011-183 (2016); Roberts, supra note 3.
9 ORCP 1.0(g).
10 Oregon State Bar, Formal Op. 2011-183 (2016).
11 See id.
15 Oregon State Bar, Formal Op. 2005-151 (2011).
17 ORCP 1.5(c)(3).
18 Oregon State Bar, Formal Op. 2005-151 (2011).
20 UTCR 5.170(1).
21 See Roberts, supra note 3.
22 UTCR 5.170(4).
23 UTCR 5.170(3).
24 UTCR 5.170(4).
25 UTCR 5.170.
26 ORPC 4.2.
27 See Oregon State Bar, Formal Op. 2011-183, n.6 (2016).
28 ORCP 17; UTCR 2.010(7).
29 ORCP 17.
30 UTCR 2.010(7) (2018).
31 Compare UTCR 2.010(7) (2018) with UTCR 2.010(7) (2019).
32 As of the time of this paper, Petitions for Dissolution of Marriage, Responses to Petitions for Dissolution of
Marriage, and Motions to Modify are The Commons’ most frequently drafted initial pleadings.
33 See, e.g., Erin Levine, HELLODIVORCE, https://hellodivorce.com/ (last visited July 15, 2020).
34 A lead magnet is a free product offered to potential buyers/clients in exchange for their email address or other
contact information. They are usually digital and downloadable content.
35 The Commons’ current Dissolution Response price sheet is included in the Appendix for educational purposes.
36 The Commons’ current Dissolution Response engagement letter template is included in the Appendix for
37 The Commons’ current Dissolution Response Notice of Limited Scope Legal Representation template is included
in the Appendix for educational purposes.
38 The Commons’ current Dissolution Response Notice of Termination of Limited Scope Legal Representation
template is included in the Appendix for educational purposes.
39 The Commons’ current Dissolution Response explanatory letter template is included in the Appendix for
educational and demonstrative purposes.
40 The Commons’ current Dissolution Response disengagement/next steps letter template is included in the
Appendix for educational purposes.
41 This document is included in the Appendix for educational purposes.
43 See, e.g., What Are Unbundled Legal Services?, THE COMMONS LAW CENTER,
https://thecommonslawcenter.org/what-are-unbundled-legal-services/ (last visited July 15, 2020).
44 Ten out of fifteen new clients have engaged The Commons for limited scope services. For comparison purposes,
in 2019, 34 total new client matters were opened, and since January 1, 2020, 28 total new client matters have been
opened as of the time of this paper.
45 Two out of ten limited scope clients.
46 One out of ten limited scope clients.