Help is Coming with Limited Scope Court Appearances
According to the Judicial Council, between 70% and 80% of California Family Law litigants are self-represented. Any attorney looking for new clients who does not see this as a marketing opportunity is not paying attention. Most of these people can afford some legal services, but not the traditional full-service representation. Others are simply “ornery DIY’ers” who are used to getting information for free off the web and insist on doing as much as possible themselves. They still need professional legal services; they’re just not writing any blank checks.
When done cleanly and correctly, limited scope court appearances have been proven to be a profit center to many lawyers. Seriously, how many lawyers wouldn’t love to have an area of their practice where they are paid in full in advance of service and have no accounts receivable?
Some lawyers are scared off because of the difficulty of getting out at the end of the service and the fear that in order to be relieved as counsel they will have to invest additional (unpaid) time. This is a legitimate concern. Since the limited scope court rules were first being debated in 2003, I have been advocating for a simplified notice of completion of limited scope representation. To date, I have been unsuccessful in California, but successful in many other states where I have consulted and which have adopted a notice of completion form similar to the withdrawal of attorney form used after full-service representation.
The good news is that the current pro per crisis has caused the Access to Justice Commission and the Judicial Council to recognize the impact not only on access to justice, but court efficiency, and take a second look on how to actively encourage lawyers to make more limited scope court appearances.
We are now operating under the second iteration of the family law withdrawal process for limited scope as set forth in CRC 5.425(e). For the past two years, I have been lobbying for relaxation of this rule and the corresponding Rule 3.36 for civil law. The Family Law and Juvenile Advisory Committee has now taken it up. There were hearings earlier this year on a relaxed form of 5.425 which would make it easier for lawyers to get out after a court appearance if the client does not sign a substitution.
A Substitution of Attorney remains the gold standard. If you’re going to make a limited scope court appearance for a client you need to explain that when the appearance is over (and the Order After Hearing filed if you were ordered to draft it) you will be sending them a document entitled Substitution of Attorney. You will not charge them for this form but they must agree to promptly sign and return it to you. Their agreement to do this is a condition of your agreeing to appear in court on their behalf. Note: NEVER, NEVER, NEVER have a client sign a substitution of attorney in blank to be filed at a later time at your discretion. That is a disciplinary offense. That being said, there is no reason why you cannot have a blank Substitution in your briefcase to be signed after the hearing is over.
The importance of the rule change comes up when, for whatever reason, the client doesn’t sign the Substitution. Sometimes it’s ignorance. They see an envelope with your return address and assume that it contains either a) a bill or b) something they’re going to be billed for. The fact is that once they have purchased a service from you and paid you, the client doesn’t want to ever see you again. They don’t understand why they have to sign a piece of paper to go to the court to simply attest that you’ve done what they know you’ve done.
The current version of Rule 5.425(e), in the absence of a Substitution of Attorney, requires the limited scope lawyer who has filed an FL-950 to file and serve a Certification of Completion of Limited Scope Appearance. The client then has 15 days to object if they think there’s something more that you agreed to do which you have not done. In the absence of an objection, the attorney then files a Proposed Order to be Relieved with the court. Nobody likes this process, although it is infinitely better than the old rule 5.71 which went into effect in 2004. No matter how attractive the fee for making a single court appearance may be, no lawyer wants to have to get court permission to be relieved as counsel.
As of this writing, we still don’t know the precise language of the new 5.425 which will be sent out for comment this fall. What we do know is that the version which was discussed by the Judicial Council in the spring was less onerous than current 5.425(e) and, as a result of lobbying by yours truly and others, an even more relaxed version is likely to be released for comment in the fall of 2016, to go into effect July 1, 2017 with the goal of making it as easy as possible for lawyers to attend a single hearing limited scope, providing a service to the public, a service to the courts, and business to the lawyer, without fear of being roped into indentured servitude.
I don’t yet have a link to the exact wording of the rule, or to the request for comments. I invite any, repeat, any interested lawyer to contact me at email@example.com The Judicial Council welcomes thoughtful comments from experienced lawyers, takes them very seriously, and never gets as many comments as it would like.
Note to Civil Lawyers:
This isn’t just about Family Law. It also works very well (and profitably) in many areas of civil law. Any time a one-shot court appearance is required, limited scope is potentially available. This includes landlord/tenant, administrative proceedings, small claims appeals, law and motion, consumer law, denial of insurance coverage, special needs advocacy, and many other areas where the individual consumer of civil legal services interacts with the court or other administrative bodies.
Your operative court rule is CRC Rule 3.36 et. seq. and forms MC-950 et. seq. As with Family Law, MC-950 is a mandatory form if you are making a limited scope court appearance. You need to carefully define the limitation on your scope both in your MC-950 and your written fee agreement.
As with Family Law, the key is getting out cleanly after your appearance is over. You should assume that you will be asked to draft the order after hearing, and factor that into your fee request. And yes, limited scope representation is always pay-as-you-go (hence the reference above to profitability).
One final note: experience has shown that these will be your happiest clients.