MSC considers limited scope representation rules

By Lee Dryden
BridgeTower Media Newswires

A proposal to establish rules for limited scope representation is among the agenda items for a Michigan Supreme Court public administrative hearing today.
“The proposed rules are intended to provide guidance for attorneys and clients who would prefer to engage in a limited scope representation,” according to a court staff comment on the amendments. “The proposal, which limits these types of ‘unbundled’ arrangements to civil proceedings, describes how such an agreement is made known to the court and other parties, what form of communication should be conducted with clients in a limited scope representation, and how the agreement is terminated.

“The proposed rules also would explicitly allow attorneys to provide document preparation services for a self-represented litigant without having to file an appearance with the court.”

Those amendments would impact MRPC 1.0, 1.2, 4.2, and 4.3, and MCR 2.107, 2.117, and 6.001.

Also on the agenda is a proposed amendment of MRE 404(b)(2) on whether to “require the prosecution to provide reasonable notice of other acts evidence in writing 14 days before trial or orally in open court on the record.”

The high court also is scheduled to hear testimony on a proposed amendment of MCR 6.425 that would “explicitly require court-appointed appellate counsel and trial courts to follow procedures set forth in Anders v California, 386 US 738 (1967), before allowing counsel for plea-convicted indigent defendants to withdraw from representation based on frivolousness of the appeal.”

A proposed amendment of MCR 3.206 would “strike the language ‘and dates of birth’ to protect personal information from being accessible from court records.”

In the final agenda item, a proposed amendment of MCR 7.300 et seq. would “adopt several follow-up MSC court rule revisions.”

The Sept. 20 hearing will begin promptly at 9:30 a.m. and adjourn no later than 11:30 a.m. in the Supreme Court courtroom on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa St. in Lansing.

Those wishing to address the high court on agenda items will have three minutes, after which the speakers may be questioned by the justices.

The high court has already received written comments on the proposals.

The State Bar of Michigan’s submitted comments to the court address written “informed consent” for limited scope representation. Informed consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The State Bar’s Board of Commissioners considered recommendations from the State Bar Workgroup on Unbundling, which initially developed the limited scope representation rules that were adopted by the State Bar Representative Assembly and submitted to the high court for consideration, according to a letter to the court from State Bar Executive Director Janet K. Welch.

Alternative A in the proposed amendments calls for the client to give informed consent “preferably confirmed in writing.”

Alternative B calls for a client’s informed consent in writing, unless exempt due to exceptions such as representation consisting solely of telephone consultation or representation “provided by a lawyer employed by or participating in a program sponsored by a nonprofit organization, a bar association, an accredited law school, or a court and the lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms.”
Other proposed exceptions include the court appointing the lawyer for a limited purpose that is set forth in the appointment order or representation provided to an existing client pursuant to an existing lawyer-client relationship.

The State Bar recommends Alternative A.

“While rules like Alternative B have the benefit of clearly setting forth when informed consent need not be in writing, the State Bar decided not to recommend such language because it is impossible to anticipate and enumerate all exceptions that might be reasonable,” Welch wrote. “Further, the State Bar is concerned that Alternative B could create an unnecessary barrier to attorneys, such as those offering one-time consultations on a pro bono basis to clients of limited means, if the limited scope attorneys are required to obtain and store written informed consent for every client in which the representation does not clearly fall within one of the enumerated exceptions.

“While most states do not require informed consent to be in writing at all, the State Bar proposed Alternative A to encourage limited scope attorneys to obtain informed consent in writing. The language ‘preferably in writing’ was intended to make the preference for written informed consent clear, but allow attorneys the flexibility to deliver needed services when written consent is not feasible or practical.”

A proposed amendment states that “a lawyer licensed to practice in the State of Michigan may draft or partially draft pleadings, briefs, and other papers to be filed with the court. Such assistance does not require the signature or identification of the lawyer, but does require the following statement on the document: ‘This document was drafted or partially drafted with the assistance of a lawyer licensed to practice in the State of Michigan, pursuant to Michigan Rule of Professional Conduct 1.2(b).’”

In written comments to the court, the Michigan Judges Association took issue with the anonymity, which “is in contradiction to an open and transparent legal system.”

“The Executive Board of the Michigan Judges Association supports the concept of limited scope representation, but does not support the sections of the amendment which allow for the practice to be conducted without identification of the lawyer who provides the representation,” wrote the association’s president Judge Paul Stutesman of the 45th Circuit Court. “There is not a clear rationale for anonymity.”