Unbundling Rules Issued for Comment

per curiam orderEvery year, more than 50,000 domestic relations cases are filed in Arkansas. Nine out of every ten of these cases involves at least one person who does not have a lawyer. Similar trends can be seen in cases involving housing, wills and estates, and debt collection cases. Only about 3000 Arkansas attorneys are currently in private practice and available to even handle cases like this. Under these conditions, it would be virtually impossible for everyone with an active case who needs legal advice to actually get it.

In recent years, more and more people have turned away from lawyers and instead sought information and legal forms online. People often pay hundreds of dollars to online services that provide documents that turn out to be legally deficient. The desire for upfront, transparent pricing and for options that allow people to handle simple matters themselves is driving a new kind of legal market–one that is leaving the legal profession behind, to the detriment of consumers and our system of justice.

For these reasons, the Arkansas Access to Justice Commission, through special Task Force on Self-Represented Litigants, has spent the last four years researching rules in other states, gathering Arkansas-specific data on self-represented litigants and market trends, drafting rules, and sharing those drafts with attorneys and judges all over the state. The recommended rule changes that the Arkansas Supreme Court has released for public comment represent four years worth of work toward a solution that we believe will make legal services affordable to many people who are currently priced out of the market, will allow cases involving self-represented litigants who use limited scope legal services to get resolved more efficiently and on the merits, and will open a new market of paying clients to attorneys.

What?

The Arkansas Supreme Court has issued a per curiam order seeking comments from the bench, bar, and public on proposed rule changes to the Arkansas Rules of Civil Procedure. Rules 11 and 64 would be modified and a new Rule 87 would be added. The Arkansas Access to Justice Commission drafted the rule changes with the goal of increasing access to justice by explicitly authorizing “unbundling” of legal services. (Read more about unbundling.) The Commission strongly encourages the public to submit comments for the Court’s consideration.

The exact text of the proposed rule changes can be found here.  Below is a brief summary of the changes proposed.

Rule 11

Rule 11 is proposed to be changed to explicitly authorize “ghostwriting” in Arkansas. Ghostwriting is when an attorney prepares pleadings on behalf of a client, but does not represent the client beyond preparing the documents. Under the proposed changes, an attorney would not need to sign the pleadings, but would be required to include a notation stating: “This document was prepared with the assistance of a licensed Arkansas lawyer pursuant to Arkansas Rule of Professional Conduct 1.2(c).”

The proposed changes would also allow an attorney ghost writing pleadings for a client to rely on the client’s representation of facts unless the attorney has reason to believe the representation is false or materially insufficient.

Rule 64

The proposed changes to rule 64 are limited to adding a reference to the proposed Rule 87 and making technical corrections to make pronouns inclusive of both genders.

Rule 87

The addition of Rule 87 would establish procedures for how an attorney withdraws from a case when the attorney and client have agreed that the representation is limited to only part of a case, as permitted by Rule 1.2(c) of the Arkansas Rules of Professional Conduct.

Why?

The proposed changes represent a win-win-win for the public, courts, and attorneys. By clarifying the procedures for attorneys who offer unbundled legal services, more attorneys will feel comfortable offering this option to clients. Unbundled services allow a lawyer and client to agree that the lawyer will handle certain parts of the case and the client will be responsible for other parts of the case. For example, a lawyer and client might agree that the lawyer will prepare a divorce complaint for the client and advise them about how they should proceed to get their divorce decree or they might agree that the lawyer will represent the client at one hearing while the client remains responsible for the rest of the case. Existing rules require that attorneys who provide limited scope representation only when it is appropriate under the circumstances, which means that limited scope representation is usually NOT going to be an option for complicated cases or unsophisticated clients.

This has the effect of increasing access to justice because attorneys who offer unbundled services charge fees that reflect a discrete amount for a discrete aspect of the case. Such fees, though commensurate with the amount of time an attorney puts in, are typically much more affordable than full-service fees. This means that more people can afford legal representation. This not only improves the outcomes in individual cases, but also helps our courts to run more efficiently. Lawyers are also able to offer their services to people who previously wouldn’t have gone to them for help.

How?

To submit comments on these proposed changes, mail them to the Clerk of the Arkansas Supreme Court at the following address:

Stacey Pectol, Clerk, Supreme Court of Arkansas

ATTN: Civil Procedure Rules

Attorneys helping clients at a clinic at Our House. This clinic utilized unbundling, allowing the volunteer attorneys to help far more clients than they could have otherwise have assisted.

Justice Building

625 Marshall Street

Little Rock, Arkansas 72201

When?

Comments must be made by October 6, 2017. If you have questions or would like additional information about the rules or our research, feel free to contact us.

Arkansas Adopts Ethics Rules on Unbundling

Last month, the Arkansas Supreme Court issued an order adopting proposed changes to the Arkansas Rules of Professional Conduct that clarify the responsibilities of attorneys who offer their services to clients on a limited scope basis. Also known as “unbundled” or “a la carte” legal services, limited scope representation offers an affordable alternative to clients who cannot afford traditional full-service representation, opens up new business opportunities for lawyers, and facilitates greater efficiency in the court system. The rules went into effect on the day of the May 12 opinion.

Modification to Arkansas Rules of Professional Conduct 1.2(c), 4.2, and 4.3 provides more explicit guidance for attorneys who provide limited scope legal services.  Arkansas Rule of Professional Conduct 1.2(c) authorizes Arkansas attorneys to provide this form of representation. That rule provides that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Additionally, the revisions include the addition of language regarding when a client’s informed consent has to be in writing, as well as language clarifying an attorney’s communication responsibilities when the opposing party is represented by a limited scope attorney.

Links to the revised rules can be found below, and sample Notices of Limited Scope Representation and Notice of Completion can be downloaded from the links below.

Ark. R. Prof’l Conduct 1.2
Ark. R. Prof’l Conduct 4.2
Ark. R. Prof’l Conduct 4.3

Limited Scope Representation – Attorney Resources

Arkansas Resources

Arkansas Limited Scope Toolkit for Attorneys (coming soon)
Sample Notice of Limited Scope Representation – Family Law
Sample Notice of Limited Scope Representation – Other Civil
Sample Notice of Completion of Limited Scope Representation

National Resources

American Bar Association Resource Center on Unbundling

The Commission is working toward seeking additional changes to Arkansas Rules of Civil Procedure to explicitly authorize the practice of ghostwriting and to permit attorneys who give proper notice of a limited scope arrangement in a court proceeding to be automatically relieved as counsel of record once the attorney has completed the limited scope representation. Drafts of those rules can be found here.

Resources for attorneys, including a toolkit, forms, CLE training, and a client referral network are under development and will be made available as they are developed.

Arkansas Supreme Court Solicits Comments on Proposed Unbundling Rules

The Arkansas Supreme Court has issued an order soliciting comments from the bar and public regarding proposed changes to Arkansas Rule of Professional Conduct that would provide guidance for attorneys who wish to provide limited scope representation. Also known as “unbundled” or “a la carte” legal services, limited scope representation offers an affordable alternative to clients who cannot afford traditional full-service representation, opens up new business opportunities for lawyers, and facilitates greater efficiency in the court system.

Arkansas rules already permit limited scope representation; the rules changes simply offer more clarity for lawyers who choose to engage in this form of practice. The revisions include the addition of language regarding when a client’s informed consent has to be in writing, as well as language clarifying an attorney’s communication responsibilities when the opposing party is represented by a limited scope attorney.

The order was issued in response to a petition that the Arkansas Bar Association filed requesting the changes. “It is the Petitioners’ belief that the rule changes proposed herein will equip Arkansas attorneys to adapt to new market realities posed by the DIY movement and help address the overwhelming unmet need among persons of limited and modest means,” the petition states. “As a result, members of the Arkansas public who are bypassing lawyers altogether can have meaningful access to the counsel and advice of skilled advocates at prices that are affordable and that compensate attorneys for their time and expertise.”

Comments should be submitted in writing and addressed to Stacey Pectol, Clerk of the Arkansas Supreme, Court, Attn: Code of Professional Conduct, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201. The deadline for submitting comments is May 1, 2016.

Supreme Court Adopts Rule for Unclaimed and Unidentifiable Trust Account Funds

The Arkansas Supreme Court has adopted changes to Arkansas Rule of Professional Conduct 1.15 to lay out a mechanism by which attorneys or estates of deceased attorneys can deal with unclaimed or unidentifiable funds in client trust accounts. The opinion, issued November 5, also moved provisions of the rule that deal with bank compliance and interest rate comparability to an administrative order.

The new provision addresses situations where an attorney, law firm, or estate of a deceased attorney (1) winds up in possession of client or third party funds and the client or third party cannot be located, despite diligent efforts to locate the rightful owner; or (2) is in possession of funds in a client trust account that cannot be traced back to a particular client.

The Arkansas Access to Justice Foundation, which administers the IOLTA program, has updated its Guidebook for Attorneys and Financial Institutions to include guidance for compliance with the new rule and has adopted forms for attorneys to use to report and remit such funds to the Foundation and to return the funds to the rightful owner if a claim for the funds is made.

The Arkansas rule change addresses these scenarios by providing a simple process for attorneys to dispose of unclaimed and unidentifiable funds consistent with applicable ethical obligations, while generating additional revenue for the IOLTA Program of the Arkansas Access to Justice Foundation, which will use the funds to make grants supporting the provision of free civil legal aid to the poor.

Arkansas Supreme Court Requests Comments on Proposed Rule on Unclaimed, Unidentifiable Client Trust Funds

The Arkansas Supreme Court has issued an order soliciting comments from the bar and public regarding proposed changes to the Arkansas Rule of Professional Conduct governing IOLTA accounts that would lay out a mechanism for addressing situations where an attorney, law firm, or estate of a deceased attorney (1) winds up in possession of client or third party funds and the client or third party cannot be located, despite diligent efforts to locate the rightful owner; or (2) is in possession of funds in a client trust account that cannot be traced back to a particular client.

In the first scenario—involving “unclaimed” trust account funds—the Arkansas Uniform Disposition of Unclaimed Property Act has historically served as the only source of guidance. Under that Act, client funds are presumed to be abandoned after seven years have passed without any contact or instructions from the property’s owner. The process for disposing client funds under this Act is often cumbersome—particularly for attorneys dealing with relatively small amounts of money—and it is inconsistent with the five-year period that attorneys are normally required to retain client records.

In the second scenario—involving “unidentifiable” trust account funds—there is no guidance whatsoever for what attorneys should do with such funds, as the Arkansas Uniform Disposition of Unclaimed Property Act contemplates that there is a known person who is the rightful owner. Some examples of situations that might result in unidentifiable funds in a trust account include:

  • When a lawyer tries to reconcile an account after a number of years;
  • When a lawyer who has died kept no or inadequate records and the representative of the estate is unable to determine what clients may be entitled to the remaining funds;
  • When law firms merge and combine records, there may be balances that have no client identifier surviving in the records.

A number of other states have implemented or considered implementing provisions to address the problem of unclaimed or unidentified trust account funds.

The proposed Arkansas rule change addresses these scenarios by providing a simple process for attorneys to dispose of unclaimed and unidentifiable funds consistent with applicable ethical obligations, while generating additional revenue for the IOLTA Program of the Arkansas Access to Justice Foundation, which will use the funds to make grants supporting the provision of free civil legal aid to the poor. Historically low interest rates have resulted in catastrophic decreases in IOLTA revenue over the last five years, resulting in significant funding cuts for legal aid.

Comments should be submitted in writing and addressed to Stacey Pectol, Clerk of the Arkansas Supreme, Court, Attn: Rule 1.15, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201. The deadline for submitting comments is September 15, 2015.

Commission Soliciting Comments on Proposed Rule Changes on Unbundling, Pro Se Assistance

The Arkansas Access to Justice Commission is soliciting comments from the bench, bar, and public on a set of proposed changes to select rules of civil procedure, professional conduct, and judicial conduct, as well as adoption of a new administrative order. The Arkansas Access to Justice Commission and its Self-Represented Litigant Task Force have crafted these proposed changes in an effort to implement the Commission’s plan for addressing significant growth of self-representation in Arkansas over the last decade. In developing its plan, the Commission had the benefit of a 2011 study it conducted in partnership with the Clinton School of Public Service, which indicated that as many as 95% of select civil cases have at least one unrepresented litigant. The Commission also relied on the 2013 recommendations of John Greacen, a nationally recognized expert on self-represented litigants. A 2014 Arkansas Lawyer article offers background information on the current state of access to civil justice makes the case for how limited scope representation (also known as “unbundling”) can reduce the justice gap and generate new sources of business for private attorneys.

Our proposed rule changes include the following:

  • Adoption of an administrative order regarding the provision of legal information to the public by court staff, librarians, and others who have specialized knowledge of the court system or legal resources;
  • Modification of Rule 2.2 of the Judicial Code of Conduct to provide more explicit guidance on the types of accommodations judges may make to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard;
  • Modification of Ark. R. Civ. P. 11 and Ark. R. Prof’l  Conduct 1.2, 4.2, and 4.3, to provide more explicit guidance for attorneys who provide limited scope legal services;
  • Adoption of a new Ark. R. Civ. P. 87, which provides for automatic termination of a limited scope engagement upon notice to the court and opposing counsel of the matter’s completion.

Other states that have successfully implemented similar rules and guidelines have found that judges and court staff are able to do their jobs more effectively when they are not burdened with deficient pleadings and unprepared litigants, that court clerks are able to successfully avoid ethical dilemmas when assisting pro se litigants, that private attorneys are able to more easily represent their clients when opposing self-represented litigants have the proper information and guidance, and that private attorneys may develop new sources of business from a previously unprofitable market of clients by providing limited scope representation. These recommendations are modeled in significant part on similar rules and policies from Alabama and Colorado.

The Commission is currently soliciting input from major stakeholders in the coming months, and our goal is to finalize the proposed rules to submit as a petition to the Arkansas Supreme Court in early 2016.

You may direct any comments, questions, or concerns to Amy Dunn Johnson, Executive Director, Arkansas Access to Justice Commission, 1300 West 6th Street, Room 110, Little Rock, AR 72201, (501) 492-7172.

Supreme Court Appoints Justice Robin Wynne, Judge Robert McCallum to Commission

The Arkansas Supreme Court has announced the appointments of Justice Robin Wynne and Circuit Judge Robert McCallum to the Arkansas Access to Justice Commission. Justice Wynne succeeds retired Arkansas Supreme Court Justice Annabelle Tuck, and Judge McCallum succeeds Judge Leon Jamison. We are grateful for the tremendous contributions that our outgoing commissioners have made to our efforts to improve access to the civil justice system for all Arkansans.

Arkansas Supreme Court Approves Merger of IOLTA, Access to Justice Foundations

The Arkansas Supreme Court has approved the merger of the Arkansas IOLTA Foundation and Arkansas Access to Justice Foundation effective January 1, 2014, according to an opinion handed down today.  The surviving entity will be called the Arkansas Access to Justice Foundation and will continue the functions related to collection of interest earned on lawyer’s trust accounts as the “IOLTA Program” of the Arkansas Access to Justice Foundation.

The Arkansas IOLTA Foundation, which was incorporated in 1985, was established for the purpose of receiving interest earned on lawyer’s trust accounts and using the revenues generated to make grants to provide funds for legal services to the poor, projects that improve the administration of justice, and legal education. The Arkansas Access to Justice Foundation was incorporated in September 2009 to promote and support access to the civil justice system by Arkansans who cannot afford an attorney, primarily by generating financial support for statewide efforts to increase access to justice.

“This is a very positive development that we believe will allow the Arkansas access to justice community to maximize the impact of our collective efforts to fulfill the Constitution’s promise of equal justice under the law,” said Amy Johnson, who serves as Executive Director of each organization.

In 2013, the boards of the IOLTA Foundation and AATJF—recognizing the need to diversify the funding sources of their respective organizations, maximize resources to support grantee organizations, and leverage statewide support for their closely aligned missions—voted to merge the two organizations.  They filed a petition requesting the merger in April.

The order approving the merger adopts conforming amendments to Arkansas Rule of Professional Conduct 1.15 and section 28 of the Arkansas Procedures Governing Professional Conduct.  These amendments simply substitute “Arkansas Access to Justice Foundation” for “Arkansas IOLTA Foundation,” where appropriate. According to Johnson, the merger will not otherwise affect IOLTA accounts, so no action on the part of attorneys or banks that participate in the IOLTA Program will be necessary.  The surviving foundation will retain the IOLTA Foundation’s Tax ID number.

Arkansas Supreme Court Issues Order Permitting Out-of-State Attorneys to Provide Pro Bono Services in Arkansas

In response to a petition that the Arkansas Access to Justice Commission filed in February, the Arkansas Supreme Court has handed down an order that permits attorneys licensed in other states who are not admitted in Arkansas to provide pro bono services to low-income clients under the sponsorship of a legal aid services provider that serves Arkansas clients. According to the Commission Executive Director Amy Johnson, nearly half of all clients who qualify for legal aid and have legal problems are turned away each year because the staff and volunteer resources are insufficient to meet the demand.  “The current need is so great that any increase in the number of attorneys available to provide pro bono services will help,” she said.

According to the Court’s opinion, this practice “will give in-house, corporate counsel the opportunity to volunteer in the community and will make justice more accessible to low-income Arkansans.”  Johnson says the order applies not only to corporate in-house counsel, but also to other non-admitted attorneys who reside in Arkansas and want to volunteer, but otherwise have no reason to seek admission to the Arkansas bar.  The Center for Arkansas Legal Services, Legal Aid of Arkansas, and Lone Star Legal Aid were all three named in the order as entities approved to sponsor non-admitted pro bono attorneys.  The change, effective immediately, is integrated into a newly-revised Administrative Order Number 15.

Chief Justice and Incoming Bar President Discuss Access to Justice

During the 2010 annual meeting of the Arkansas Bar Association, Chief Justice Jim Hannah and incoming Arkansas Bar Association President Jim Julian urged Arkansas lawyers to fulfill their obligations under Rule 6.1 of the Rules of Professional Conduct.  These obligations include handling 50 hours of pro bono work each year and contributing financial support to legal aid programs in Arkansas.

“We as an association must take the lead in addressing this challenge,” said Mr. Julian.  “We must assure that those in need can have access to justice in Arkansas.  We can do that by supporting the work of the Arkansas Access to Justice Commission.”

Below, we have posted videos of the portions of Chief Justice Hannah’s and Mr. Julian’s speeches in which they discuss the status of access to justice efforts in Arkansas.  The Access to Justice Commission is extremely grateful to Chief Justice Hannah and Mr. Julian for their leadership in addressing the justice gap in Arkansas.

Chief Justice Jim Hannah

“Contrary to the fear and concern expressed by a few, this work [access to justice] is not about encouraging or enabling members of the public who could otherwise secure the paid services of an attorney to represent them.  Rather it seeks to make available an array of tools and programs which better enable our citizens to access the legal advice and services they need.”

Arkansas Bar President Jim Julian

“You have heard two or three times at this bar association meeting about our obligations under the model rules of professional conduct: 50 hours of pro bono service per year.  If we all made that commitment, access to justice would not be the concern that it presently is.  As individuals and collectively, we can make a difference in the lives of so many people who are in need.  Donate your time; donate your talents.  Make a difference in this area.”