What Is Limited Assistance Representation?
©2011 Attorney Douglas R. Peterson
In November of 2006 the Massachusetts Courts embarked on an 18 month pilot project in Hampden and Suffolk counties to permit lawyers to agree to perform limited representation roles for clients in Probate Court matters. This pilot project was extended to Norfolk County. On May 1, 2009 the Supreme Judicial Court extended it indefinitely and made it available to all Probate Courts and authorized its implementation in the future by all divisions of the trial courts. In November of 2010 it was extended to the Housing Court and in January of 2011 to civil cases in the District Courts.
What is limited assistance representation? Under the usual rules, whenever a lawyer enters an appearance for a client in a case in court, it is for all purposes. The lawyer cannot withdraw from the case without the approval of a judge. This approval can be denied especially if the client does not have a new lawyer. The lawyer therefore must take a retainer and charge for his services on the basis that he will be in the case from beginning to end. Under limited assistance representation, if the client and the lawyer agree to limited scope representation in writing and the proper forms are filed, the lawyer can withdraw after the purposes of the limited representation have been completed without a judge’s approval. For example the lawyer may appear for the client for a motion hearing only, or for a settlement conference, or for the trial, if there is to be one. The lawyer may also represent the client only in an advisory role and/or to prepare pleadings to be filed in court without the necessity of filing an appearance or ever appearing in Court if that is what the client wishes.
The purpose of limited assistance representation is to make legal assistance available at lower cost to litigants who otherwise might be representing themselves without any legal assistance whatsoever. The practice is closely tied to the general concept of “unbundling” of legal services in general whereby the client may undertake portions of the legal matter, leaving the rest to the lawyer.
There of course will be risks involved in such limited representation arrangements. Basically they are similar to the risks a person takes when they decide to represent themselves with the exception that they will have a lawyer’s assistance on limited tasks or issues and perhaps appearing for one or more (but not all) court events. A client cannot assume that because they have a lawyer for limited purposes that every problem including those not within the scope of the lawyer’s representation as limited by agreement will be addressed or even considered by the lawyer. In addition unanticipated and therefore unaddressed evidentiary and other legal issues or procedural problems very well could later arise for which the client is totally unprepared and has not had the benefit of legal advice. The client must weigh these risks against the benefit of getting some legal representation at lower fees than full and unlimited representation would cost before entering into such an arrangement with a lawyer.
Some matters may not lend themselves to such an arrangement because of their complexity or for other reasons in the judgment of the lawyer. The rules specifically state that the lawyer cannot be retained to appear at a hearing for the client solely to handle objections to evidence and that if the attorney appears for the client at a court event, the court will not be required to listen to advocacy (argument) from both the lawyer and the client. Only qualified attorneys who have had special training are authorized to participate in this program. Attorney Peterson has taken the training and is so qualified.
What this means for folks out there is that that it is possible to enter into limited representation agreements whereby the lawyer will be retained to perform specific limited roles for the client in any cases subject to housing court jurisdiction as well as probate court jurisdiction. This would include landlord/tenant disputes and evictions in the Housing Court, and in the Probate Court Divorce and matters involving Family Law, Guardianship and Conservatorship, Probate of Estates, Will Challenges, disputes over accountings, and partition of land and in the District Court in any civil litigation within its jurisdiction.