March 26, 2019
An overwhelming number of civil litigants in our Illinois courtrooms today are self-represented. This is a cause for concern for both judges and lawyers. For judges, it takes more time to handle cases when litigants do not know legal procedures or how to state a claim or a defense. And for lawyers, this growth of unrepresented litigants is not a healthy sign for future business. Some self-represented litigants say they do not have lawyers because they cannot afford the cost. Some lawyers complain that the reason they do not get involved in representing clients with smaller claims is that once they appear in the case, it is impossible to withdraw if the case takes longer or is more complicated than expected and the client is no longer able to pay them.
There is a solution. Illinois Supreme Court Rule 13(c)(6) allows a lawyer to perform discrete tasks for the client in the litigation process rather than representing them in the entire matter. This results in a more fair, efficient, and cost-effective relationship, which benefits not only the litigant, but the lawyers and judges as well. Here is how it works.
Illinois Supreme Court Rule 13(c)(6) allows an attorney to make a limited scope appearance on behalf of a party in a civil proceeding when the attorney has entered into a written agreement with that party that provides for such a limited scope representation. Rule 137 also allows lawyers to draft pleadings for self-represented litigants without having to enter an appearance. Under both rules, if the scope of the representation in a particular matter is “reasonable under the circumstances” (a requirement that has been liberally applied) and the attorney has obtained the client’s “informed consent” (an absolute requirement), then such limited representation is permissible under Illinois Rule of Professional Conduct 1.2, which applies to scope of representation issues. For example, under Rules 13 and 137, lawyers may enter into a client relationship with the litigant by agreeing only to draft the complaint or answer, handle discovery matters, appear for a client at a deposition, argue a motion, or represent them at a hearing. This “unbundling” of tasks allows the litigants to pick and choose tasks within their budget, and opens opportunities for lawyers to provide such legal services to litigants where they otherwise might not have represented them. And for the court, limited scope representation is a tremendous benefit because it may result in improved pleadings, a smoother discovery process, and a more efficient hearing as the case may be. It is a win-win-win for litigants, lawyers, and judges.
The requirements for providing limited scope representation are simple. A written agreement must be signed by the lawyer and client spelling out with particularity the scope of the lawyer’s representation, and making it clear there that when the specific task contemplated in the agreement is completed the lawyer may withdraw. Our Supreme Court has made it clear that to take advantage of this limited scope representation, the proper forms must be signed and filed. It is important for the attorney entering into this arrangement with the client to read the rules and use the forms in Article 1 of the Supreme Court Rules, Forms Appendix, pertaining to Rule 13. There are other rules attorneys should also know that address service of the limited scope forms (Rule 11) and lawyer communications with litigants who are represented on a limited basis. (Rule 4.2 of the Illinois Rules of Professional Conduct).
Judges also must respect these agreements and allow lawyers to withdraw if the limited scope of the representation has been completed, and the proper forms have been filed. In the commentary to Rule 13 our supreme court states that if the use of this rule is going to expand, trial courts must uphold their end of the bargain as well.
A court’s refusal to permit withdrawal of the completed limited scope representation, or even its encouragement of the attorney to extend the representation, would disserve the interest of justice by discouraging attorneys from undertaking limited scope representations out of a concern that agreements with clients with such representations would not be enforced.
There is no accurate data on how often Rule 13(c)(6) is being used, but there are surveys that show it is underutilized. Perhaps this is because litigants, lawyers, and some judges are not aware of it. Since the rule is so important to access to justice and the more efficient management of our courts, it may be a sound idea for judges to advise self-represented litigants when they first appear in court of the availability of the rule and how it might be of some benefit to them. Lawyers should also advise their clients in initial client meetings of the availability of the rule and how the rule may assist in managing the cost of the litigation. Rule 13 (c)(6) is a very important tool that can be used by litigants, lawyers, and judges to improve our judicial system.
Finally, our Supreme Court’s Access to Justice Commission, the Lawyers Trust Fund of Illinois, the Chicago Bar Association, and the Chicago Bar Foundation have compiled a Limited Scope Representation Toolkit that provides checklists, forms, and background on how to use the rule. This toolkit can be found on the Chicago Bar Foundation and the Illinois Supreme Court’s websites.