State Bar of Arizona Ethics Opinions

05-06: Limited Scope Representation; Candor to Tribunal; Fees
7/2005

An attorney representing a client may enter into an agreement limiting the scope of services to a specific and discrete task. An attorney is required to have sufficient knowledge and skill to provide reliable counsel to the limited scope client as to the advisability of the action requested by the client. The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona.

FACTS[1]

The inquiring attorneys are affiliated with an agency providing legal services to low- and moderate-income individuals.  One of the two attorneys also practices in the area of family law.  The inquiring attorneys contend that legal service programs can provide assistance to a larger number of low-income clients if an attorney is permitted to limit the scope of the representation of these clients.  According to the inquiring attorneys, limited scope representation permits an attorney to assist a client with a discrete task and then proceed to help another client once that specific task is completed.  The inquiring attorneys have submitted various questions relating to limited scope representation.

QUESTION PRESENTED

1.     Is it ethical for an attorney to agree in advance to provide limited scope representation to a client?

2.     Is an attorney ethically required to take any steps in addition to a written representation agreement in order to enter into an agreement with a client to provide limited scope representation?

3.     Can an attorney provide competent legal assistance to a client if the scope of representation is limited?

4.     Is an attorney ethically required to disclose to the court that the attorney has limited the scope of the attorney's representation?  If not required, is such a disclosure permitted?[2]

RELEVANT ETHICAL RULES

ER 1.1.     Competence

A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ER 1.2.     Scope of Representation and Allocation of Authority between Client and Lawyer

(c)     A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

ER 1.5.     Fees

(b)     The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.  Any changes in the basis or rate of the fee or expenses shall also be communicated in writing.

ER 1.6.     Confidentiality of Information

(a)     A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted or required by paragraphs (b), (c) or (d) or ER 3.3(a)(3).

ER 3.3.     Candor Toward the Tribunal

(a)     A lawyer shall not knowingly:

(1)     make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

.   .   .   .

(b)     A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage in, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c)     The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.

ER 6.5.     Non-Profit and Court-Annexed Limited Legal Services Programs

(a)     A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1)     is subject to ERs 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2)     is subject to ER 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by ERs 1.7 or 1.9(a) with respect to the matter.

(b)     Except as provided in paragraph (a)(2), ER 1.10 is inapplicable to a representation governed by this Rule.

ER 8.4.     Misconduct

It is professional misconduct for a lawyer to:

(a)     violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;       

.   .   .   .

(c)     engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

. . .

RELEVANT ARIZONA ETHICS OPINIONS

Ariz. Op. 91-03

OPINION

The inquiring attorneys identify an increasingly real side effect of our adversarial legal system, that is, the proliferation of parties representing themselves in court.  In Arizona, this practice is especially prevalent in the domestic relations arena.  An American Bar Association study reported that in Maricopa County Superior Court at least one party was represented by a lawyer in 76 percent of all divorce filings in 1980.  BRUCE D. SALES, ET AL., AMERICAN BAR ASS'N STANDING COMM. ON THE DELIVERY OF LEGAL SERVS., SELF REPRESENTATION IN DIVORCE CASES v-vi (1993).   A second Maricopa County study showed that, ten years later, the percentage dropped to less than 50 percent of the time, while in only 12 percent of all divorce cases were both parties represented by counsel.  AMERICAN BAR ASS'N STANDING COMM. ON THE DELIVERY OF LEGAL SERVS., RESPONDING TO THE NEEDS OF THE SELF-REPRESENTED DIVORCE LITIGANT 7 (1994).  While the reasons vary, often the decision to proceed in propria persona is influenced by the high cost of retaining an attorney.

Parties in both divorce and non-divorce actions are representing themselves more frequently on issues that will have long-term consequences in their lives.  Private practitioners and public interest attorneys have responded to the needs of these clients by limiting their representation to certain identifiable and discrete tasks.  Though long a practice in the representation of clients in transactional matters, limited scope representation[3] has only more recently become commonplace and studied within the litigation context.

Supporters of limited scope representation justify it as a point of entry for clients who may not be able to afford the full services of a lawyer.  Under such an arrangement, a client and a lawyer agree prior to any work being done that the lawyer will limit the lawyer's efforts to the completion of one or more particular tasks.  Usually this entails representation of the client's interests only through a portion of a lawsuit or transaction.  The lawyer thus satisfies their agreement when the tasks are completed.  By limiting the representation, a lawyer and client can agree that the client will pay less than if the lawyer were retained for full representation.  If the client requires additional services after the completion of the tasks, the lawyer and client can continue the representation under the auspices of a separate agreement.

In addition to addressing the costs of retaining a lawyer, limiting representation is also of value to public interest and pro bono attorneys looking to maximize the number of low- and moderate-income clients they are able to serve.  Public interest resources and a pro bono attorney's time may preclude the long-term representation of a client in a large transaction or complex lawsuit.  An attorney faced with representing a client under such circumstances may choose to forsake the representation given the demands that would be placed on the attorney.  By limiting the scope of representation, clients expected to require a significant amount of attorney time may get the representation they need at a certain stage in their transaction or proceedings without committing the attorney to a long-term representation.  Similarly, these attorneys can address the issues of more low- and moderate-income clients by containing the work they do for a particular client before proceeding to address the issues of another client.

(1)     Is it ethical for an attorney to agree in advance to provide limited scope representation to a client?

The Committee has previously offered its opinion on this very question.  In Opinion 91-03, the Committee reviewed the then-existing language of ER 1.2(c), which stated that a lawyer could "limit the objectives of the representation if the client consents after consultation."  We concluded that this language permitted an attorney to ethically represent a client on a limited basis as long as the client provided consent after consultation, the scope of the representation was not so limited as to cause the attorney to violate the ethical rules or any other law, and the attorney did not advise the client to do something that the attorney could not do personally.[4]  Ariz. Op. 91-03, at 5.  The filing of a frivolous pleading was provided as an example of such prohibited conduct.  Id. at 4.  We further observed that limited scope representation was likely needed in order for clients with limited resources to have access to legal services.  Id.  Though the Committee thought it advisable to obtain client consent to the limited representation in writing, seeing no such requirement in ER 1.2 at the time, we surmised that written consent was not a prerequisite to limited scope representation.  Id.

Wholesale changes to the Arizona Rules of Professional Conduct in 2003 gave us a change in the language of ER 1.2(c) and its explanatory comments.  The rule now provides as follows:

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. 

ER 1.2(c).  With the new changes, ER 1.2(c) and its attendant comments were intended to make even more apparent that limited scope representation agreements are permitted under the ethical rules.  See ER 1.2 cmt. 6.  The drafters of the American Bar Association's Model Rules of Professional Conduct expressly noted that the intent of revised Rule 1.2(c) was "to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel."  AMERICAN BAR ASS'N, REPORT OF THE COMM'N ON EVALUATION OF THE RULES OF PROF'L CONDUCT 145 (2000).

In its revised form, ER 1.2(c) does not detract from the requirements set forth by the Committee in Opinion 91-03, it only adds new obligations.  At the forefront of these is that the limited scope representation must be "reasonable under the circumstances."  Limited scope representation is thus permitted as long as the client provides informed consent[5] to the limited representation, the scope of the representation is not so limited as to violate the Rules of Professional Conduct or other law, the attorney does not advise the client to do something that the attorney would be prohibited from doing personally, and the limited scope representation is reasonable under the circumstances.

(2)     Is an attorney ethically required to take any steps in addition to a written representation agreement in order to enter into an agreement with a client to provide limited scope representation?

After the publication of Opinion 91-03, the ethical rules were amended to require that the scope of a representation as well as the basis and amount of fees and expenses be expressed to a client in writing.  See ER 1.5(b).  Limited scope representation agreements therefore now must be in writing, except for those situations in which an attorney is doing the same work for the same client on a repeat basis.  See id.; ER 1.5 cmt. 2.  This is true regardless of whether fees are to be paid by a client or the legal services are provided without charge. 

Besides the requirements stated above, an attorney must treat a limited scope representation no different than a normal representation at the time the attorney enters into the agreement to provide limited services representation.  Thus, like a standard representation, the limited scope representation must be consistent with all other Rules of Professional Conduct.  See ER 1.2 cmt. 9.

The inquiring attorneys are affiliated with a community-based legal services organization.  It is worth noting, therefore, that an attorney providing short-term limited services under a program sponsored by a nonprofit organization or court is in fact subject to less restriction when evaluating conflicts of interest than an attorney providing service outside of those programs.  See ER 6.5.  Paradigmatic examples of this type of limited service are a legal advice hotline or a pro se clinic.  See Id. cmt. 1.  The relaxing of the conflict of interest rules in these instances has been justified as part of a plan to not "discourage firms from permitting their lawyers to volunteer in legal services programs."  AMERICAN BAR ASS'N, REPORT OF THE COMM'N ON EVALUATION OF THE RULES OF PROF'L CONDUCT xviii (2000).  By design, ER 6.5 thus implicitly encourages attorneys to engage in a form of limited scope representation for low- and moderate-income clients.

(3)     Can an attorney provide competent legal assistance to a client if the scope of representation is limited?

The Committee implicitly accepted that competent legal assistance is possible when it approved of limited scope representation in Opinion 91-03.  Nonetheless, after Opinion 91-03 some concern still existed in other jurisdictions as to whether a limited scope representation was in fact a competent representation under ER 1.1.  See Johnson v. Board of County Comm'rs, 868 F. Supp. 1226, 1231 (D. Colo. 1994) (holding that limited scope representation violated Rule of Professional Conduct 1.1 pertaining to attorney competence), aff'd on other grounds, 85 F.3d 489 (10th Cir. 1996).  Having resolved that the ethical rules now specifically allow for limited scope representation, the Committee believes that the new changes to ER 1.2(c) would not have permitted such representation if it was not possible for an attorney to provide competent legal assistance as set forth in ER 1.1.  The short answer to this question is therefore that an attorney can achieve competence under ER 1.1, but it leaves open another:  What must a lawyer do to provide competent representation to a client if the lawyer limits the scope of the representation?

Arizona's rule on attorney competence states that an attorney must possess "the legal knowledge, skill, thoroughness and preparation necessary for the representation."  ER 1.1.  The agreed-upon limit between attorney and client in the representation's scope is a factor to be considered when determining the amount of knowledge, skill, thoroughness and preparation needed.  ER 1.1 cmt. 7.  An attorney in a limited scope representation may be called upon to handle a task that the attorney is familiar with, such as the drafting of a simple pleading or a straightforward agreement.  ER 1.1 requires that attorney to have sufficient knowledge, skill, thoroughness, and preparation with respect to the particular task that the attorney has been asked to do.  Nonetheless, an attorney does not completely discharge his or her duty under ER 1.1 this way.

While an attorney providing limited scope representation has a duty to provide competent representation as to the task that the attorney has been asked to do, it is not enough to be competent only in the performance of that task.  Rather, an attorney providing limited scope representation must know enough to counsel the client regarding the advisability of the action contemplated.  See Utah State Bar Ethics Comm., Op. 02-10, at ¶¶ 25-33 (2002); see also Colo. Bar Ass'n Ethics Comm., Op. 101 (1998) (concluding that Rule of Professional Conduct 1.1 requires a lawyer providing limited scope representation to "make the factual inquiry necessary to understand the client's legal situation and provide competent advice").  Just like most other representations, the required skill and knowledge is that of a general practitioner.  See ER 1.1 cmt. 1.  An attorney offering limited scope representation thus should gather enough information from the client to get a general practitioner's understanding of how the case or transaction will be affected by the task that the lawyer has been asked to do.[6]  See ER 1.1 cmt. 5 ("Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem . . . .").  Because the representation is expressly limited, however, the attorney is not expected to have the same thoroughness of knowledge or understanding about those matters outside the limited services agreement as would be expected in a full representation.  See ER 1.1 cmt. 5; ER 1.2 cmt. 7.  In all instances, an attorney should consider consulting with or referring a potential client to another attorney if he or she does not have the requisite level of skill and knowledge.

We note that a lawyer providing service to a limited scope client cannot separate the obligation to provide advice from the attorney's duty to perform the limited task in a competent manner.  See Utah State Bar Ethics Comm., Op. 02-10, at ¶ 29 (2002) ("While an attorney may limit the scope of representation to advising the client or to advising and assisting in drafting pleadings, there is no authority for eliminating the advice-giving role in an attorney-client relationship.").  If the attorney cannot provide reliable counsel on the advisability of the action, the limitation on the representation is not reasonable under the circumstances, and the representation will violate both ER 1.1 and ER 1.2(c).  See ER 1.2 cmt. 7.

(4)     Is an attorney ethically required to disclose to the court that the attorney has limited the scope of the attorney's representation?  If not required, is such a disclosure permitted?

Much has been written about a lawyer's duties to a court or tribunal when the lawyer is providing limited scope representation to a client.  When required, an attorney's duty to inform the court when the attorney is providing limited scope representation has been based on ER 3.3 (Candor Toward Tribunal) and ER 8.4 (Misconduct), their functional equivalents in the Code of Professional Responsibility,[7] and Rule 11 of the Rules of Civil Procedure.

In Opinion 91-03, the Committee noted that Rule 11 could impose a legal requirement on an attorney to disclose to the court and counsel of record that the attorney is providing legal service to a client proceeding in propria persona.  Ariz. Op. 91-03, at 4-5.  The Committee resolved that whether Rule 11 impacts upon limited scope representation is "ultimately for the courts" to decide, and declined to offer its opinion on such a legal issue.  Id.  Courts in other jurisdictions have determined that Rule 11 prohibits an attorney from preparing court filings for a pro per litigant without signing them, or have cited Rule 11 in disapproval of such practice.  See, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79 (E.D. Va. 1997), aff'd, 172 F.3d 44 (4th Cir. 1999); Johnson, 868 F. Supp. at 1231-32.  No Arizona court has yet published a decision concluding that Rule 11 requires an attorney to inform the court when the attorney is providing limited scope representation to a pro per client.

The inquiring attorneys' question inevitably raises issues of both law and ethics.  But notwithstanding the potential applicability of Rule 11 as a matter of law, whether an attorney has an ethical duty to advise a court or tribunal that a pro per client is being provided with limited scope representation is a distinct issue.  While the Committee adheres to its observation in Opinion 91-03 that Rule 11 may be a legal basis for requiring disclosure to a court under certain circumstances, the question presented enables us to use our discretion and revisit this issue under the ethical rules.[8] 

If an attorney does no more than provide limited advice to a pro per client without assisting in the drafting of documents to be submitted to the court or attending court proceedings, the Committee does not believe that this type of limited scope representation needs to be disclosed to the court.  Similarly, where an attorney providing limited scope representation actually enters an appearance in the client's case as part of the limited scope agreement, the appearance can be made without disclosing to the court or tribunal that the attorney and client have agreed to a limited scope representation.  An attorney choosing to enter a formal appearance in a dispute assumes the risk that a court or tribunal will not permit the attorney's withdrawal upon the termination of the agreed-upon task.  See ER 1.16(c) (requiring an attorney to continue representation when ordered by a tribunal notwithstanding good cause for termination).

An attorney limiting the scope of representation may in some cases, however, choose to go beyond merely providing advice to the client and will draft pleadings or other submissions that the attorney knows will be presented to a court without that attorney actually entering a formal appearance.  Courts in other jurisdictions have addressed this practice by permitting an attorney to enter a limited appearance for the purpose of completing a circumscribed task or filing a court document.  See, e.g., COLO. R. CIV. P. 11(b); FLA. FAM. LAW R. P. 12.040; ME. BAR R. 3.4(i); 8TH JUD. DIST. CT. NEV. R. 5.28; WASH. R. CIV. P. 4.2 & 70.1; UNIF. R. DIST. CT. WYO. 102.  Because Arizona procedural rules do not currently afford an attorney the opportunity to enter a limited appearance for these narrow purposes, an attorney wishing to avoid making a formal appearance in the matter will generally keep his or her name off of the court submission.[9]  For this reason, documents which a lawyer assisted in preparing for a pro per client are usually submitted to the court in the name of the pro per client, a practice also known as "ghostwriting."  The ghostwriting of pleadings and other court submissions is a frequent way for an attorney providing limited scope representation to assist a pro per litigant without committing to the entire litigation.  The question this raises is whether the ghostwriting of pleadings or other court-submitted documents by a lawyer violates Ethical Rules 3.3(a)(1) and 8.4(c), which require attorneys to be truthful and avoid false representations in their dealings with a court or tribunal, and 8.4(a), which prohibits an attorney from violating the ethical rules or doing so through the acts of another.

Other ethics committees and courts have addressed similar questions with mixed results.  On the one hand are opinions stating that there is no ethical prohibition on ghostwriting, and that the practice is freely permitted without ever needing to advise the court that it is occurring.  See Alaska Bar Ass'n Ethics Comm., Op. 93-1 (1993); Los Angeles County Bar Ass'n Prof'l Responsibility & Ethics Comm., Op. 502 (1999); Los Angeles County Bar Ass'n Prof'l Responsibility & Ethics Comm., Op. 483 (1995).  On the other are opinions that find that ghostwriting is unethical per se as a fraud upon the court that can only be remedied by advising the court that the submitted document was prepared by or with the assistance of an attorney.  See Iowa Sup. Ct. Bd. of Prof'l Ethics & Conduct, Op. 94-35 (1995); Iowa Sup. Ct. Bd. of Prof'l Ethics & Conduct, Op. 96-31 (1997); see also Ass'n of the Bar of the City of New York Comm. on Prof'l & Jud. Ethics, Op. 1987-2 (1987) (requiring disclosure of an attorney's involvement even if the attorney only assists with a one-time simple pleading); N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 613 (1990) (same).

Still others have landed somewhere in the middle of the fray.  The majority of bar associations that have reviewed this issue have supported the notion that an attorney drafting documents for a pro per client for court submission must provide some form of disclosure to the court when the attorney provides "substantial," "significant," or "extensive" assistance to the client.  See ABA Comm. on Ethics & Prof'l Responsibility, Informal Op. 1414 (1978); Conn. Bar Ass'n Comm. on Prof'l Ethics, Op. 98-5 (1998); Del. State Bar Ass'n Comm. on Prof'l Ethics, Op. 1994-2 (1994); Fla. State Bar Ass'n Comm. on Prof'l Ethics, Op. 79-7 (2000); Mass. Bar Ass'n Comm. on Prof'l Ethics, Op. 98-1 (1998); N.H. Bar Ass'n Ethics Comm., Unbundled Services-Assisting the Pro Se Litigant (1999); Ky. Bar Ass'n, Op. E-343 (1991); Utah State Bar Ethics Comm., Op. 74 (1981); Va. State Bar Standing Comm. on Legal Ethics, Op. 1127 (1988); see also Ariz. Op. 91-03 (dissent) (advocating disclosure to the court where the attorney's assistance is "ongoing and substantial").  This view has been repeated in various courts as well.  See, e.g., Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (drafting an appellate brief is substantial assistance per se); Ricotta v. State of California, 4 F. Supp. 2d 961, 987 (S.D. Cal. 1998) (level of attorney's involvement with court filing without disclosure amounted to unprofessional conduct); Ostevoll v. Ostevoll, 2000 WL 1611123, at *9 (S.D. Ohio Aug. 16, 2000) (pleading prepared in substantial part by an attorney must be disclosed by attorney's signature).  Some courts and ethics committees from other jurisdictions go so far as requiring disclosure of an attorney's involvement in the preparation of court documents on the filed document. [10]   See COLO. R. CIV. P. 11(b); FLA. FAM. LAW R. P. 12.040(d); 8TH JUD. DIST. CT. NEV. R. 5.28(a); see also Fla. State Bar Ass'n Comm. on Prof'l Ethics, Op. 79-7 (2000); N.H. Bar Ass'n Ethics Comm., Unbundled Services-Assisting the Pro Se Litigant (1999); Ass'n of the Bar of the City of New York Comm. on Prof'l & Jud. Ethics, Op. 1987-2 (1987); N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 613 (1990).  But see CAL. R. 5.70(a) (stating that an attorney that assists a client in a family law proceeding with drafting legal documents but does not make a formal appearance "is not required to disclose within the text of the documents that he or she was involved in preparing the documents").  Imposing this type of disclosure rule, however, exceeds the scope of our authority.  

While acknowledging the existence of the above opinions, the Committee finds that disclosure to the court or tribunal of an attorney's assistance with a court filing is not necessary when the pro per client submits the document for filing.  The Committee concludes that the submission of ghostwritten documents without informing the court or tribunal does not violate ER 3.3(a)(1) and ER 8.4(c) because the practice is not inherently misleading to the court or tribunal.  When presented with a document prepared with the assistance of counsel, the Committee believes that a court or tribunal can generally determine whether that document was written with a lawyer's help.  ER 3.3(a)(1) proscribes against an attorney making or failing to correct a false statement of fact or law to the court or tribunal.  We do not believe that the omission of an attorney's name from a filed document is a false statement of fact or law that is either made or needs to be corrected.  Because the disclosure of an attorney's assistance with court filings is not obligatory under the ethical rules, by deduction, the submission of ghostwritten materials by a pro per client does not contravene ER 8.4(a)'s prohibition against violating the ethical rules through the acts of another, such as the attorney's client.

Some courts and ethics committees have evidenced disfavor with lawyers ghostwriting court documents because they believe the practice provides an unfair advantage in that courts are willing to afford more leeway to pro per clients.  See, e.g., Laremont-Lopez, 968 F. Supp. at 1078; Johnson, 868 F. Supp. at 1231; Mass. Bar Ass'n Comm. on Prof'l Ethics, Op. 98-1 (1998); Ass'n of the Bar of the City of New York Comm. on Prof'l & Jud. Ethics, Op. 1987-2 (1987).  The authorities argue that a pro per party who is actually receiving the services of a lawyer thus receives the benefits of legal assistance and special treatment by the court at the same time.  Another view is that it interferes with a court's ability to superintend the conduct of counsel and parties during litigation.  See United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 1997).  Notwithstanding these arguments,[11] courts are usually able to correctly assess when to afford pro per litigants appropriate latitude and when these litigants are being given the benefit of assistance of counsel.  For case management purposes, a court can confirm the existence of assisting counsel by directly asking the pro per litigant if the issue becomes important to the resolution of the case.

With this opinion, we do not approve of attorneys ghostwriting documents that are filed with courts and tribunals without providing some form of disclosure.  Instead, we only confirm that the practice is not prohibited by Arizona's Ethical Rules and do not revisit our conclusion in Opinion 91-03 that it may be prohibited by Rule 11, as other courts have agreed.  But as before, we believe it best to leave the legal boundaries of this issue for definition by those with requisite authority.

As to whether an attorney may disclose the existence of a limited scope representation to the court when not required, this issue turns on whether the client's confidential information relating to the representation may be disclosed in accordance with ER 1.6.  The rule lists several circumstances in which the attorney is permitted to disclose the client's confidential information related to the representation as well as others in which the attorney is prohibited from making such a disclosure.  ER 1.6 also specifically allows for the disclosure of a client's confidential information as long as the client consents after consultation.  See ER 1.6(a).  An attorney wanting to disclose the attorney's role in the limited scope representation to the court when not obligated to do so should ensure that at least one of these circumstances applies.

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[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  © State Bar of Arizona 2003

[2] In addition to these questions, the inquiring attorneys ask what steps a limited representation attorney should take t  (1) demonstrate to opposing counsel that the attorney has the authority to bind the client, and (2) that the attorney should be contacted instead of the client.  As these additional questions seek advice on representation strategy rather than the ethics of specific attorney behavior, they are outside the jurisdiction of the Committee and are not addressed in this opinion.  See STATE BAR OF ARIZ. COMM. ON THE RULES OF PROF'L CONDUCT, STATEMENT OF JURISDICTIONAL POLICIES ¶ 6(c). 

[3] Advocates dedicated to the concept of limited scope representation have also interchangeably used the terms "discrete task representation," "unbundled legal services," and "limited scope legal assistance."

[4] Several other ethics committees providing opinions on their ethical rules both before and after Opinion 91-03 have concurred with the conclusion that limited scope representation is permitted.  See, e.g., Colo. Bar Ass'n Ethics Comm., Op. 101 (1998); Del. State Bar Ass'n Comm. on Prof'l Ethics, Op. 1994-2 (1994); Ky. Bar Ass'n, Op. E-343 (1991); Los Angeles County Bar Ass'n Prof'l Responsibility & Ethics Comm., Op. 502 (1999); Los Angeles County Bar Ass'n Prof'l Responsibility & Ethics Comm., Op. 483 (1995); Mass. Bar Ass'n Comm. on Prof'l Ethics, Op. 98-1 (1998); Me. Bar Bd. of Overseers Prof'l Ethics Comm'n, Op. 89 (1988); N.H. Bar Ass'n Ethics Comm., Unbundled Services-Assisting the Pro Se Litigant (1999); Va. State Bar Standing Comm. on Legal Ethics, Op. 1127 (1988).

[5] Under the previous version of ER 1.2(c) and our opinion in 91-03, a client was required to "consent after consultation" to the limited scope representation.  See Ariz. Op. 91-03, at 2, 4-5.  ER 1.2(c) now indicates that a client must give "informed consent" to the representation.  The term "informed consent" is defined in the newly revised Rules of Professional Conduct as "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."  ER 1.0(e).  The change to ER 1.2(c), however, was not intended to be substantive.  AMERICAN BAR ASS'N, REPORT OF THE COMM'N ON EVALUATION OF THE RULES OF PROF'L CONDUCT 146 (2000).

[6] Because the inquiring attorneys are affiliated with a legal services organization and primarily counsel clients who cannot afford the cost of a full representation or more than one lawyer, we limit our discussion here to those situations where only one attorney is addressing the client's legal problem through limited scope representation.  The Committee's opinion does not address the level of knowledge and skill that would be needed by a single lawyer when a team of lawyers is involved in addressing the client's legal issue or when a lawyer is brought in as a specialist to assist another lawyer in a complex transaction or litigation.

[7] See DR 7-102(A)(5); DR 1-102(A)(4).

[8] See STATE BAR OF ARIZ. COMM. ON THE RULES OF PROF'L CONDUCT, STATEMENT OF JURISDICTIONAL POLICIES ¶ 6(a) (setting forth the discretion of the Committee to opine on mixed questions of law and ethics). 

[9] Whether an attorney, including one providing limited scope representation, has entered a formal appearance in a case as a matter of law is not addressed here as the issue is a legal one outside of the jurisdiction of the Committee.  See Ariz. Op. 91-03, at 3 (declining to determine at what point a formal appearance was made by an attorney as a matter of law).

[10] We note that a similar requirement has recently been promulgated by the Arizona Supreme Court for certified legal document preparers creating documents for pro per clients.  See ARIZ. CODE JUD. ADMIN. § 7-208(F)(1)(3) (requiring documents to include the legal document preparer's name, designated title, and legal document preparer certificate number "on all documents prepared by the legal document preparer that are filed in an Arizona court or tribunal") (effective July 1, 2003).

[11] Courts and ethics committees taking this view have, not surprisingly, reached a different result than that found here.  See Duran, 238 F.2d at 1272 (ruling that the ghostwriting by attorney constituted a misrepresentation to the court by the litigant and attorney); Johnson, 868 F. Supp. at 1231 (ghostwriting implicates the Model Code's equivalent to Arizona's ER 8.4(c)); Ostevoll, 2000 WL 1611123, at 9 (same); Eleven Vehicles, 966 F. Supp. at 367 (ghostwriting implicates the lawyer's ethical duty of candor to the court); In re Mungo, 305 B.R. 762, 768 (Bankr. D.S.C. 2003) (stating that ghostwriting "is a misrepresentation that violates an attorney's duty and professional responsibility to provide the utmost candor toward the Court"); see also Conn. Bar Ass'n Comm. on Prof'l Ethics, Op. 98-5 (1998) (attorney ghostwriting court submissions can violate Rule of Professional Conduct 3.3(a)(1)); Del. State Bar Ass'n Comm. on Prof'l Ethics, Op. 1994-2 (1994) (ghostwriting misleads the court in violation of Rule 8.4(c)); ABA Comm. on Ethics & Prof'l Responsibility, Informal Op. 1414 (1978) (ghostwriting attorney violates Model Code's equivalent to Arizona's ER 8.4(c)); Iowa Sup. Ct. Bd. of Prof'l Ethics & Conduct, Op. 94-35 (1995) (same); Ass'n of the Bar of the City of New York Comm. on Prof'l & Jud. Ethics, Op. 1987-2 (1987) (same); Utah State Bar Ethics Comm., Op. 74 (1981) (same); Va. State Bar Standing Comm. on Legal Ethics, Op. 1127 (1988) (same).   Because we cannot subscribe to the basic tenets underlying a finding of an ethical rules violation, we cannot adhere to their conclusions.