My comments on proposed limited-scope representation rules; your comments due March 1

The Virginia Supreme Court and the Judicial Council are considering a new rule to deal with limited-scope representation, especially assistance to people who are already in litigation. My comments on it are below. The proposal, and where you can send comments by March 1, 2018, are at:

Advisory Committee on Rules of Court, Judicial Council of Virginia, "LIMITED-SCOPE REPRESENTATION ISSUES".

Overall comments — 

 

This is a very important reform. Full-scale representation in family law litigation is often unaffordable even by people who would be considered upper middle class. And it takes both divorcing spouses to prevent any particular divorce from becoming unaffordable, long-running litigation.

 

The proposed rule has many extra cautionary requirements for the attorney, or the attorney’s name and contact information, to be present in court, and on documents, even for issues where the lawyer is not involved. Please bear in mind that each of these requirements comes at a cost, not only of the attorney’s time, attention, and availability for other cases, but also by sowing predictable confusion among clients and especially their opposing parties, who aren’t involved in the limited-scope agreement. When lawyers’ names are on papers or a lawyer is present, lay people are going to assume that the lawyer is a prime mover in whatever is going on. Lay people, and even the lawyers themselves, will often feel that the lawyer has some responsibility to intervene or advise about whatever comes to the lawyer’s attention. Lawyers' instinct to be helpful will inevitably cause “mission creep” in many cases. So all such requirements should be kept to the minimum necessary.

 

As lawyers comply with these additional requirements, clients and other members of the public may feel that the lawyer is hanging around like a vulture waiting to insert herself into the proceedings and expand her involvement so that it is no longer limited. Or interfering, intruding and violating the client’s desire to limit the scope of the lawyer’s work, by writing to the client with repeated notifications of well-known facts about hearing dates, etc., whenever the lawyer is cced on something the other side sends out. Many clients already respond this way to communications that court rules and ethics rules require us to send.

 

Line comments

 

9-10 

 

 I agree that a lawyer should not be present but generally uninvolved, only popping up now and then with objections. That would be chaotic and unfair.

 

But I can also see the value in having an attorney handle only a particular motion in limine or motion to suppress. It seems fairly clear that the intent is to allow that, but it would help to make that explicit.

 

11-13

 

" A notice of limited scope representation is not required for  … (ii) services performed by an attorney before any litigation is pending”

 

Does that dispensation also apply to the requirements to “indicate” or “identify" in (1) (F), Alternative versions 2 through 5?

 

I believe it should apply. Either way, that question should be answered explicitly.

 

26 et seq. — Alternative versions of (F)

 

In all versions, the term “papers for submission to a court” is intended to be clear, but what about marital separation agreements? They are not court filings. They are binding contracts when the parties sign them, regardless of whether they are submitted to a court. But whenever one gets signed by both spouses, perhaps 95% of the time there is going to be divorce, and the agreement i8s going to be submitted to the court as part of the divorce process.

 

I think limited-scope assistance is crucial, so I oppose Alternative # 5, which essentially bans limited-scope, and Alternative # 4, which creates a presumption against it; imposes a needless requirement to essentially file a notice of appearance, and then to file a notice of disappearance.

 

86

 

“Papers” sounds vague. I think you mean litigation documents such as pleadings or discovery requests, but we need a more precise, comprehensive, understandable, and distinctive term for that.

If it’s intended to mean everything, including settlement correspondence, that’s reasonable, too, but that too would need to be clearer. Because the word “papers”, to a lot of people, vaguely indicates papers that are somehow official, binding, and/or threatening.

 

88

 

The requirement should be to notify the “sender”, not “the adversaries”. They might not be the same people.

 

 

notify the adversaries in writing of that fact

should be changed to  

notify the adversaries, in writing, of that fact

or

notify the adversaries of that in writing

 

But really, “that” or “that fact” might not make clear to everyone which of the facts mentioned earlier in the sentence it refers to, so it would be better to say, 

 

“the attorney must notify the sender that the documents received deal wholly or partly with matters outside the scope of the limited representation,"

 

107-108

 

"(D) Contacts by adversaries or co-parties on matters within the limited scope of 108 representation shall be with counsel …"

 

What about family law cases, where many couples legitimately continue some kinds of negotiation between themselves, even when they both have counsel who are negotiating at the same time? 

 

110-111

 

“copy served upon the attorney making a limited scope appearance” — 

 

Would serving the attorney require that attorney to respond and notify as required in (3)(C)? If that happens once, it makes sense or is at least harmless. But in litigation where filings go back and forth almost every week, it’s going to drag the limited-scope attorney into a lot of busy work, and confuse litigants — the client and/or the opposing party — about the attorney’s role.

 

115-116

 

(A) — attendance at all court proceedings, outside the scope,  should not be required if the rule is truly allowing limited representation. I would expect attorneys to charge for this time, and it would be a major burden on the clients and the attorneys.

 

John Crouch

VSB Council Member for 17th Circuit

Fellow, International Academy of Family Lawyers (Formerly IAML)
and International Academy of Collaborative Professionals