The South Carolina judiciary’s Access to Justice Commission is considering amendments to various court rules which would standardize and clarify the procedures around limited scope representation.
If submitted to and adopted by the state’s Supreme Court, the changes would allow attorneys to make limited appearances on behalf of clients or to draft pleadings for a self-represented litigant without automatically committing the attorney to the case long-term.
All proposed amendments are available online.
Isn’t this already allowed?
Judge James Spence, the Master-in-Equity for Lexington County who chairs the subcommittee studying the rule changes, said that there is currently some ambiguity about what is and is not allowed.
“Although allowed under the Rules of Professional Conduct, there are no procedural rules in place to permit limited scope appearances, and nothing in the rules to specifically permit ‘ghostwriting,’” he said in an email. But he also clarified that “virtually all [local] jurisdictions permit some form of limited scope representation, and the majority of jurisdictions have adopted specific procedural rules to permit the process.”
Adair Boroughs, who is the executive director of Charleston Legal Access, which provides low-cost legal services to low-income litigants, said that current rules make it difficult for attorneys to commit to pro bono work.
“Under civil rules, an attorney can’t withdraw from an appearance without court approval,” she said. “This creates uncertainty, because you don’t actually know if the judge will let you out … this deters attorneys from taking pro bono cases.”
Boroughs said that the proposed amendments will make it easier for attorneys to commit to doing more public service.
“It’s ethically allowed, but not everyone knows that,” she said. “Readdressing this can give certainty about how this works and convince people to take on such cases.”
What’s the point?
Simply put, just about everyone interviewed for this story agreed that, if executed properly, limited scope representation has the potential to increase the efficiency and efficacy of the court system.
Supreme Court Justice John Few, who chairs the Access to Justice Commission, but spoke on his own behalf, said that he supports the changes.
“Some version of a rule that specifically enables limited scope representation is a really good thing,” he said. “Good for the bar and good for the public.”
Judge Marvin Dukes, the Master-in-Equity for Beaufort County who also served on the subcommittee studying the changes, said that allowing limited scope representation has the potential to fill a gap in justice.
“The idea is the cost to get counsel to take a case from A to Z is past a lot of people’s ability,” he said. “The consensus is that if there is a way to allow pro se litigants to hire litigators for a portion of the case, it’s good for justice, good for accurate verdicts, and good for litigants, so it’s good all around.”
Boroughs said that allowing limited scope representation has the potential to allow litigants already on the verge of poverty to save money on attorneys fees, while increasing the likelihood of getting a favorable result.
“Litigants have better outcomes,” Boroughs wrote in a letter on the topic addressed to the Access to Justice Commission, which she shared with Lawyers Weekly. “Even if the case is not resolved during the limited appearance, the client is on better footing than without the limited appearance and advice of counsel.”
The change also makes good business sense, according to Elizabeth Chambliss, a University of South Carolina law professor who studies the regulation of legal services and who participated in a meeting on the topic.
“The courts are packed with unrepresented litigants,” Chambliss said in an interview. “This is also a response to the increase in the do-it-yourself market. Competitors online are offering monetized, fixed-rate services. The profession needs to think about how to offer these services competently and effectively.”
One of the biggest issues surrounding limited scope representation is how to regulate it. Some say the changes could lead to attorneys abusing the system at their clients’ expense.
“Some judges are concerned about the protection of the client,” Chambliss said. “What if they don’t agree about what limited scope means and the client thinks the lawyer is in, but the lawyer isn’t?”
As a result, Chambliss said that clear lines must be drawn and consented to from the outset regarding the scope of representation. She said that she thinks the issue can be resolved by standardizing the process.
“In my opinion, a lot of the concerns about how it would work requires standardizing,” she said. “For this to benefit lawyers and clients, and for lawyers to make money, there has to be a standard market based around specific tasks.”
On the issue of ghostwriting, Boroughs said that there is potential for attorneys to misuse the changes to avoid accountability and candor with the court. However, she said she thinks the issue would come up rarely, and that representation for more litigants makes the risk worthwhile.
“Will there be wayward attorneys who think they can subvert the system?” Boroughs asked, “Sure, that could happen. But the benefit of having attorneys feel free to do this is a much bigger gain.”
The Access to Justice Commission wrapped up taking public comments on the matter on Sept. 19. The court has since published the written comments and made them available for review.
Spence said in an email that the Commission has no hard deadlines on considering the changes. Few said that if the commission recommends the changes, it will next be up to the Supreme Court to decide whether or not to implement them.
Spence said that the Supreme Court must submit any rule changes involving practice and procedure to the General Assembly before Feb. 1.
Follow Matthew Chaney on Twitter @SCLWChaney