Limited Scope Representation
An untapped tool for "Access to Justice"
About a year ago (January 2023) New York implemented a new statute explicitly authorizing limited scope representation…..CPLR 321(d). There is some history to this: In 2016 the Chief Administrative Judge issued an Order expressly authorizing limited scope representation, but there was no internal support or encouragement to implement it, so nothing happened. When it was codified with CPLR 321(d), I was hoping it would inspire more activity, but it really hasn't. Most Judges are unaware of it (I've asked), and most attorneys will be afraid to try it if the Court doesn't seem to be on board. I think a business model featuring limited scope representation could be a huge opportunity for some attorneys, especially in NYC Housing Court, where there are tens of thousands of cases backed up, many of which could be resolved with a "two attorney conference". Lots of reasons why it hasn't really caught on here, most of them stupidly political. Anyway, here 's the statute ... https://casetext.com/statute/consolidated-laws-of-new-york/chapter-civil-practice-law-and-rules/article-3-jurisdiction-and-service-appearance-and-choice-of-court/section-321-attorneys
Back in 2016, there was an “Access to Justice” initiative, which sought input from various quarters. Most of the presentations and submissions involved expanding civil legal aid and how to implement that. Limited scope representation was not on the agenda, so I submitted a paper on it. During the pandemic, when courts were closed for months and it was obvious there were going to be big problems when courts re-opened, I sent my paper to various judicial officials and suggested that they look at limited scope representation as one option. I was gratified to receive some positive responses and even more gratified when I saw the new law get passed. These things don’t come out of the blue…SOMEONE WAS LISTENING!
In any event, the law is on the books and it will really help a lot of people IF it could be taken further. My sense is it will take some entrepreneurial practitioners to make it happen. For anyone who finds this topic remotely intriguing, here’s the paper I submitted….
ACCESS TO JUSTICE: A PRIVATE PRACTITIONERS PERSPECTIVE
By: Barry Seidel, Esq. Submitted 9/9/16
I opened my own practice right out of law school in 1982, and am now in my 34th year of solo law practice. I practice regularly in Supreme, Civil and Surrogate’s Court, mostly in Queens County.
The courtrooms and clerk’s offices are inundated with pro-se litigants. I regularly see people in Surrogate’s Court struggling to fill out and file the proper forms, with the Clerks (understaffed as they are) valiantly assisting them.
In Civil and Housing Court, pro-se litigants are the norm. These cases usually involve creditor claims and/or housing/rent issues. Routine stuff for the plaintiff’s attorneys, who are generally handling a volume of cases. By contrast these cases are stressful and often bewildering to the pro-se parties.
In Supreme Court, most defendants in foreclosure cases are pro-se. They appear regularly in the Centralized Motion Part and on the foreclosure conference calendars.
I am aware of the phrase access to justice and the various entities with an interest in this topic, including:
- Law schools and academia.
- Local, State and national bar associations.
- State and local legislatures.
- Civil rights advocates.
Clearly, many people would be better served with representation by competent legal counsel. This commission, and the invitation to address an array of issues, recognizes this.
That being said, there is an untapped, neglected and ignored resource in the access to justice discussion. This resource is the availability of private attorneys to provide AFFORDABLE, quality legal services.
I ask the Committee to consider a statement that I hope is not too outrageous, which is:
A significant percentage of pro-se litigants COULD AFFORD TO PAY A COMPETENT LAWYER A REASONABLE FEE FOR CLEARLY DEFINED SERVICES
I wish to be very clear: I am NOT saying that people who cannot afford to pay should be unserved, or forced pay for services they cannot afford. This Committee is rightly addressing those situations.
What I AM saying is there is a disconnect between what people want and need, and what they perceive as being available to them. Recognizing this, and bridging this disconnect, ought to be a high priority.
Isn’t it ironic that the “job market” for lawyers is poor, yet the demand for a wide range of legal services is sky high?
This is not lost on legal services “purveyors” like LegalZoom, who are inundating the airways and the internet with advertising. Their advertising specifically emphasizes “access to justice”.
Last September I attended a conference where the keynote speaker was John Suh, the CEO of LegalZoom. He told the attorneys in attendance that LegalZoom was focusing its attention on the “access to justice” problem.
His analysis went as follows: For people in the top 1% of income, clients can and do get top quality legal help. Then there is the bottom 15% of income, which LegalZoom cannot service, which he stated could be served in other ways.
Then there is the other 84% of the population (16-99% of income), who he says don’t have “access to justice” because small law firms and solos are not able to provide this in an affordable way.
Most of us are familiar with LegalZoom’s legal forms. In addition to forms, LegalZoom supplements their forms by enabling customers to call a lawyer at LegalZoom for help with the forms.
At the next level, and what LegalZoom is rolling out now, is a widespread pre-paid legal plan. They intend to have the largest and most expansive pre-paid legal plan in the history of civilization. I know this must be big because they advertise extensively on Shark Tank. Under these plans customers would be billed each month and then have the ability to obtain legal advice from attorneys who participate in the plan. This will be a great thing for attorneys, Suh claimed, because it will create 20-30,000 new legal jobs.
LegalZoom has "done studies" of attorneys and work quality, and efficiency. Suh summarized his findings this way…
Big law firms are pretty efficient, with their attorneys working at 75% efficiency. That is, they spend 75% of their working hours doing actual legal work for clients. Their quality is good and their use of technology is high.
The most efficient firms are those numbering between 10-20 lawyers (“boutique" firms), who spend 80% of their working hours doing actual legal work. Boutique firms are also more efficient because their lawyers tend to be “in their prime” (i.e. – no newbies and no dead wood older partners). These firms also tend to use the newest technologies most efficiently.
The least efficient lawyers are the solos and small firms. According to Suh, they/we work at a 40% efficiency. We spend only 40% of our time doing actual legal work for our clients. And, we often focus on several areas of law and are not high level on any particular one. And, we are behind on technology.
LegalZoom’s plan is to use boutique law firms for their pre-paid legal plans. The 20-30,000 new legal jobs are going there. They expect to pay the boutique firms well, in the realm of pre-paid legal, and for the firms to accept way less than their usual hourly in exchange for the volume and prompt payment from LegalZoom. Will that work? Time will tell.
John Suh made it clear that this pre-paid legal opportunity, and the legal work and income related to it, will NOT be made available to solos and small firms. He said solos could not stand up to LegalZoom’s vetting and review processes.
He said it. I was there. There was a gasp in the room....though maybe it was just me.
At first I couldn’t put my finger on what was so upsetting about this. But then it struck me…
HE IS RIGHT!!! But also very wrong.
He is right that….solos are not as efficient in our work because we spend time on marketing, and billing, and collections, and evaluating new matters, and personnel issues, and all the other things that comprise being in practice.
He is right that….we sometimes venture out of our best practice areas.
He is right that….we are not all/always on the cutting edge of technology.
He is right that….it would be difficult to guarantee all-day availability for calls from pre-paid legal clients at a reduced hourly rate.
But he is WRONG (and disingenuous) when he talks about an access to justice problem for “middle class people”.
He is WRONG to throw a blanket over the 16-99% income levels, as if people across the entire income spectrum have the same legal needs and issues about access to legal services.
He is WRONG if he thinks good clients want to commoditize legal service and get it through a monthly plan where they call an attorney on the plan. Clients don’t want (or deserve) that…they want their own lawyer, who they can talk to about the specific matter, but who also know them well enough to offer contextual advice for THEM.
I don’t know if he thinks small firms and solos are destined to remain inefficient and unable to be accessed by the many clients who are not currently connecting with the best private attorneys for them. But if he thinks this, he is WRONG.
This is NOT an "access to justice problem". It is a disconnect between the clients actual needs (quality, affordable legal services) and small-firm lawyers ability to provide this AND make their services known to the potential clients.
WE (solos and small firm lawyers) should be serving this market WAY better. We are uniquely qualified to do this IF/WHEN we up our game. Our fees should be commensurate with real value, which clients can see and understand (and appreciate). Clients want, and deserve, personalized legal services.
I don’t think most clients have problems that can be resolved with some “access to justice” in the form of a consultation with a lawyer on a pre-paid legal plan.
I don’t think clients want their lawyer through a pre-paid legal plan. But they do want their lawyer to be competent, and responsive, and transparent, and to charge fairly.
Can we solo and small firm lawyers honestly say we are doing this? If we are not, we better improve. We then have bigger challenges:
1. Making sure our best potential clients know what we offer and how they can work with us.
2. Overcoming systemic obstacles to our making these connections.
For the many situations where the disconnect between pro-se persons and affordable representation is real, this disconnect ought to be addressed by this Commission and the various participating entities. A realistic way to do this is encouragement, support, and implementation of “unbundled legal services” also known as “limited scope representation”
Limited scope representation may not be THE next big thing in law practice, but it is certainly A next big thing. It's an opportunity waiting to be seized by current and future attorneys, IF we are astute enough to make it happen, and IF it is properly supported by the Courts. It’s a trend across the Country, and it has been studied, though apparently not embraced, here in New York. (see “Testimony of NYC Bar President Debra Raskin dated 9/29/15 http://www.nycbar.org/media-listing/media/detail/city-bar-president-testifies-at-chief-judges-hearing-on-civil-legal-services-1) Its implementation has been limited to some free “attorney for the day” programs and clinics, some government sponsored programs, and encouragement of more pro-bono by attorneys.
Attorneys in private practice have not been encouraged to pursue or explore limited scope representation, and in fact there is systemic discouragement for attorneys who might offer such representation. If an attorney tries to clearly define the scope of his services with the client, and then file a limited notice of appearance, would the Judges and Clerks permit this? Probably not. More importantly, most attorneys perceive that if they tried to do this, it would not be permitted.
In limited scope representation, the attorney and client clearly define the services to be provided and the fee for such services. It could be assisting with the preparation of documents, making an appearance for a conference or trial, or other services which the lawyer and client could agree upon. Defining and pricing specific services is something that practitioners should do anyway. In complex matters it is not feasable because there are so many potential scenarios. However, most cases in Civil or Housing Court, or portions of a foreclosure defense case in Supreme, or document prep for Surrogate’s Court, are most appropriate for such definition and pricing.
I note that when the “Attorney for the Day” program in Civil Queens (managed by a law professor and staffed by law students) appears at a conference, they file a “Limited Notice of Appearance”, which has been sanctioned by the Court.
Private attorneys ought to be able to do this too, subject to appropriate regulation and monitoring. I have asked various Judges, court attorneys and Clerks about this, and the consensus is that this is not permitted because it “could cause a lot of problems”. The most frequent objection refers to “the misunderstandings that might occur and the problems this would create for the Courts”.
If this is the main obstacle, then looking at how to overcome these obstacles would greatly benefit the public. If people who need legal services, and can afford to pay a reasonable fee, were better able to get THAT, the entire system would be elevated and justice would be served.
I will go one step further. Overcoming these obstacles will also help solo and small firm lawyers, and the profession as a whole. Helping this group of attorneys OUGHT TO BE IMPORTANT to those in a position to help with this, including:
- The Judiciary
- The organized bar
- Lawyers at big firms
My perspective after 34 years in practice is that most of these entities don’t actually help lawyers in practice, including the legions of unemployed and under-employed new attorneys. Lawyers in their own practices hear these entities pay lip service to helping "the profession" and "the public", but rarely addressing the actual issues faced by solos and small firm attorneys.
The gap between legal needs and the perceived availability of legal services is being addressed by the likes of LegalZoom. They are commoditizing various services, making them appear "affordable", and therefor appealing.
What they are actually doing is "unbundling" various legal services and offering "limited scope representation". They are stepping in and filling the gap between what is needed and what is perceived to be available.
Can private lawyers offer AFFORDABLE legal services?
YES, but only IF they define what the different services are, make clear what they are going to do, and make the pricing for the various services CLEAR.
Doing or not doing this is a choice. Lawyers have traditionally and collectively not done this effectively. And so, we have this paradox: While the law schools and bar associations scratch their heads in wonder over the declining "job market", there is a HUGE demand for legal services of all kinds.
Law practice presents great opportunities for the entrepreneurially minded. The ability to offer limited scope representation ought to be available to practicing attorneys.
In many parts of the country, local bar associations are recognizing the benefits to the public in unbundled legal services. New York is woefully behind in this.
I don't think it can be argued that clients do better when they are represented as opposed to pro-se. There is value in what lawyers can do in a court setting, both substantively and in the harder to quantify aspect of the client’s understanding the process and having peace of mind as the case is addressed.
Would clients pay a fair price for such value? I'd say yes, many would, IF they were aware of the option to do this. Even if we don’t know this for certain, the upside makes it worth the effort to find out.
Can there be value to clients and lawyers in limited scope representation? YES, but only IF we lawyers….
- Clearly and logically price our services.
- Work efficiently.
- Offer true value, presented with clarity and transparency.
- Make our services known to the potential clients.
In States where unbundled legal services have been encouraged, an interesting thing has happened....MANY times when a limited scope appearance didn't finish a matter, the client hired the attorney to complete the case.
It's pretty clear why that happens: Clients get to see the actual value an attorney provides.
That is a win-win, for the clients and the practicing attorneys.
I am aware, of course, that the expansion of limited scope representation is not specifically on the Commission’s agenda for these hearings. I suggest that this topic be on future agendas, as it can have a direct positive impact on enhancing the fair and efficient administration of justice in the Courts.
I wish to make suggestions for several specific items, which will warrant further study, or attention, or input:
1. What criteria are currently used to determine financial eligibility for free legal services?
2. What percentage of pro-se litigants could actually afford (however that may be defined) to pay reasonable fees for clearly defined services?
3. How would private attorneys propose to price various services, and would most potential clients consider this a fair value?
4. How could publicly supported agencies and/or bar associations work together with private attorneys to encourage limited scope representation?
5. Would it be feasible to develop a uniform set of forms and standards of practice for limited scope representation?
6. Would it be feasible to develop and promote public service announcements regarding such services?
Thank you for your consideration.
Respectfully submitted,
Barry Seidel, Esq.