Although a recent rule change lets family-law attorneys provide legal services in a piecemeal fashion to clients who might otherwise go without representation, some say lawyers aren’t taking advantage of the new opportunity as much as they should be.
Limited-scope representation, also known as unbundled legal services, allows attorneys to represent a client for certain parts of a legal action rather than having to work on an entire case. The practice is common in business law. Companies with their own counsel often negotiate contracts with outside lawyers when they need a representative with a particular specialty.
Wisconsin attorneys have been allowed under ethics rules to provide clients with those sorts of services since 2007. Yet, by 2013, few seemed to be taking advantage of the opportunity. A committee was eventually formed to find out why.
Relying partly on that committee’s conclusions, John Voelker, while director of state courts, petitioned the Wisconsin Supreme Court to make changes to the limited-scope rule. His goal was to ensure that attorneys, particularly those practicing in the areas of public interest and family law, would make more frequent use of it. The high court approved the changes in June 2014, and they took effect in January.
One of the most significant changes clarified that lawyers would not have to see a case through to the end even if they appeared in court. It also let lawyers not identify themselves by name when helping a party to a legal action prepare briefs or other court documents. One of the few stipulations is that limited-scope agreements be clearly defined and in writing.
Yet, despite the changes, self-represented litigants continued to flood circuit courts more than a year after the rules took effect.
Milwaukee County Circuit Court Judge Mike Dwyer, who worked on the committee that helped draft the rule change, says he has seen a slight increase in the number of lawyers who come before him to represent a client only in a limited scope. But it hasn’t been nearly as much as he expected it to be.
Dwyer said he saw no limited-scope cases when he was working as a children’s court judge from 2012 to 2015.
“But now that I’m in family court, I’m looking for signs of people using the rule and providing limited-scope-representation cases,” Dwyer said. “I have seen six cases that I was able to tell was a product of limited-scope representation, which, frankly, I think is pretty good.”
Likewise, Sue Hansen, a Milwaukee family attorney at Hansen & Hildebrand S.C., said she knows of few of her fellow practitioners who offer unbundled legal services. This is to be expected, she said, to an extent.
Lawyers almost never change their practice habits overnight.
“Now will come the greater challenge of trying to shift the culture and practice of family law and will come the challenges of educating the public that there are alternatives between check box, do it yourself and hiring lawyers,” she said.
Some of the biggest obstacles to change can be found in divorce law, Hansen said. People who are ending a marriage often avoid lawyers out of a fear that legal representation will make what is already many times an adversarial proceeding even worse.
In trying to change that attitude, Hansen said, her firm tries to make sure that families are fully aware of the range of options they actually have. She said the bulk of her limited-scope work now involves drafting and consulting services.
The biggest trouble, both Dwyer and Hansen said, continues to be that most people simply don’t know that they have options beyond either retaining a lawyer for the entirety of a case or heading to court by themselves.
“The people who really need this are of very limited means and don’t know how to ask for it,” Dwyer said. “Another problem is that people tend to believe they should be able to handle it themselves for free.”
Filing an action in family court does not require the hiring of a lawyer unless one of the spouses or parents involved in the case is out of state. Most people, in fact, will pay a retainer and then gather relevant information that will eventually be turned over to a lawyer, who then files the legal action.
“People just don’t know it, and lawyers just aren’t selling it,” Dwyer said. “If consumers knew about this, they could save themselves a lot of money.”
On the other end of things, family lawyers could be tapping a new market of clients, since nearly 70 percent of all litigants in those sorts of cases have not got legal representation. Some litigants are too poor to afford it, but increasingly, others are representing themselves simply because they don’t want to pay a lawyer and believe they don’t need one.
Clients, though, are not the only ones who have not rushed to embrace the recent changes.
“It makes lawyers a little uncomfortable,” Dwyer said. “(They’re asking themselves,) ‘Wait does it make me a piecemeal assembly line worker versus a professional lawyer?’” Follow @erikastrebel