State Bar of Arizona Ethics Opinions

06-03: Limited Scope Representation; Confidentiality; Coaching; Ghost Writing
7/2006

An attorney who limits the scope of representation and coaches the client or ghost writes papers must direct the client to be truthful and candid in the client’s activities.  While an attorney is not required to disclose to opposing counsel that the attorney is providing limited-scope representation, the attorney must maintain client confidentiality if doing so.

FACTS

The inquiring attorney practices primarily family law.  The attorney is reorganizing her practice to provide only limited-scope representation.  The client would represent herself in most interactions with an opposing party or counsel, with the lawyer’s assistance, including court appearances.  The inquiring attorney would not ordinarily disclose the representation to the opposing party or counsel.

QUESTIONS PRESENTED

1.  Must an attorney providing limited services to a client advise either opposing counsel or an unrepresented opposing party of the limited-scope representation?
2.  May an attorney limit services to "coaching" the client?
3.  May an attorney limit services and only represent the client in a deposition?

RELEVANT ETHICS RULES

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.

(d)  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

ER 1.3  Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

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, 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 4.1  Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a)  make a false statement of material fact or law to a third person; or

(b)  fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by ER 1.6.

ER 4.2  Communication With Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

ER 4.3  Dealing With Unrepresented Persons

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.  The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

RELEVANT ARIZONA ETHICS OPINIONS

Ariz. Ethics Op. 05-06

OPINION

In Ariz. Ethics Op. 05-06, this Committee explained that limited-scope representation as authorized by the Ethics Rules does not require disclosure of the limited-scope attorney’s role to a tribunal.  This opinion addresses the responsibility of the lawyer to others.

1.  Must an attorney providing limited services to a client advise either opposing counsel or an unrepresented opposing party of the limited-scope representation?

A lawyer must act with candor toward a tribunal, ER 3.3; be truthful in dealing with others, ER 4.1(a); and disclose material facts in order to avoid assisting a client’s criminal or fraudulent act, ER 4.1(b).  A lawyer may not counsel the client to act otherwise.  ER 1.2(d).  Accordingly, the lawyer providing limited services must direct the client to act in the same way the lawyer would be required to act.

The attorney's duty to disclose the limited-scope representation to opposing counsel is guided by ER 4.1.  The rule requires an attorney to refrain from making a false statement of material fact or law to a third person.  ER 4.1(a).  Thus, the attorney complies with this rule by making only true statements to opposing counsel.  Unlike disclosure to a court, ER 4.1(a) does not place an affirmative duty on the attorney to advise opposing counsel of the limited-scope representation unless it is to avoid assisting the client with a criminal or fraudulent act and then only if permitted by ER 1.6.  In fact, unless required to do so by the rules, e.g., E.R. 1.6., an attorney may not disclose information pertaining to the limited representation unless authorized to do so by the client.  Disclosure of the limited scope may indeed adversely affect the client’s situation.  Also, ER 1.6(a) allows disclosure when disclosure is impliedly authorized in order to carry out the representation.

If the attorney is authorized by the client to disclose the limited-scope representation, ER 4.2 may impose upon opposing counsel a duty to refrain from contacting the client about the subject of the representation, "unless the lawyer has the consent of the other lawyer or is authorized by law to do so."  The limited-scope attorney should provide opposing counsel with explicit instructions, after consultation with the client, as to when opposing counsel may communicate about the subject of the representation with the client.  The ground rules could include directions about whom the opposing counsel should contact and on what matters, to whom and where opposing counsel should send pleadings, correspondence and other notices, and whether the attorney is authorized to accept service for the client.  This notice can be accomplished without disclosing the fee agreement.  If the limited-scope representation is later revised or expanded it should be disclosed to the opposing counsel to meet the requirements of ER 4.1 and ER 4.2.

2.  May an attorney limit services to "coaching" the client?

A transaction, negotiation, court appearance or deposition involves interaction between the clients, or the lawyers for the clients, as well as with the court in litigation.  A client may seek a lawyer’s assistance in preparing for a negotiation or oral argument.  Such a client may even request the lawyer’s presence during the event so that the lawyer can help deal with developments or simply buttress the client’s presentation.  A range of activities may constitute coaching the client in the legal activity.

Coaching may sometimes delay the dispute-resolution process. An attorney-coach should avoid unreasonably delaying the process.  If the client cannot make decisions without first consulting the attorney, then that client may not be suitable for limited-scope representation.

Coaching can occur during mediation, at a settlement conference or in litigation.  The attorney should be guided by ER 4.1 and ER 3.3 when deciding whether the judge, mediator, or opposing counsel should be informed of the limited-scope representation.  Attorneys in Arizona must be aware that coaching in litigation, if done in the courtroom, may be considered an appearance by the court.  Except for experimental Rule 9(B), Arizona Rules of Family Law Procedure, presently there are no provisions in the applicable procedural rules allowing an attorney in Arizona to make a limited appearance.  Experimental Rule 9(B) provides on a three-year trial basis for an appearance in compliance with ER 1.2 on matters including protective orders, establishment or modification of child support, temporary orders, and qualified domestic relations orders.  Rule 97 authorizes Family Law Form 1 "Notice of Limited Scope Representation."

3.  May an attorney limit services and only represent the client in a deposition?

There is no ethical limitation to a limited-scope attorney representing the client at a deposition.  The legal question whether this activity constitutes an appearance in the action is outside the scope of the Committee's jurisdiction.  The obligations of a lawyer appearing at a deposition do not change depending on whether the scope of representation is limited.

CONCLUSION

An attorney who provides limited-scope representation to a client does not have an affirmative duty to advise opposing counsel of the limited-scope representation unless it is to avoid assisting the client with a criminal or fraudulent act and then only if permitted by ER 1.6. In an appropriate case and under appropriate circumstances, an attorney may limit services to "coaching" a client. Because coaching may occur at a mediation, at a settlement conference or in litigation, the attorney should be guided by ER 4.1 and ER 3.3 when deciding whether the judge, mediator, or opposing counsel should be informed of the limited-scope representation. Finally, an attorney may limit services and only represent the client in a deposition, but should be aware of whether doing so constitutes an appearance in the case.

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 2006