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.

Tyson Executive, District Judge, to Lead Justice Commission


The Arkansas Access to Justice Commission has elected Tyson Foods Senior Vice President for Human Resource Operations Rod Nagel as its Chairperson and reelected Lincoln County District Judge Vic Harper at its Vice Chairperson. Officer elections took place at the Commission’s October 2015 quarterly meeting.

Nagel is the first non-attorney and business community leader to serve in a leadership capacity on the Commission. He succeeds retired UALR Bowen School of Law Dean Emeritus Chuck Goldner, who chaired the Commission from 2004 to 2010 and again in 2015. Retired Arkansas Supreme Court Associate Justice Annabelle Imber Tuck has also previously chaired the Commission, serving in that role from 2010 through 2014.

“Access to justice is core American value, but one that we are not living up to as a society or as a state,” said Nagel. A 2011 Commission study conducted in partnership with the Clinton School of Public Service indicates that as many as 95% of family law, consumer, and housing cases have at least one unrepresented person. “This is a problem that requires leadership from all sectors if we are to address it in any meaningful way.”

According to Commission Executive Director, Amy Johnson, the Commission’s efforts focus on increasing the ability of Arkansans to access the court system so that they can solve problems that cause and perpetuate poverty. Among those who often need help are domestic violence victims, children with special needs, and veterans readjusting to civilian life.

District Judge Vic Harper, who has served on the Commission since 2014, was reelected to a second term as Vice Chair of the Commission.

The Commission has also announced one reappointment and three new appointments. Andrea Walker, Managing Helpline Attorney for Jonesboro-based Legal Aid of Arkansas, has been reappointed to a second three-year term on the Commission. New appointments include University of Arkansas School of Law Professor Tiffany Murphy of Fayetteville, Circuit Judge Thomas Smith of Bentonville, and Circuit Judge Teresa French of McGehee.

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.

‘Justice Gap’ Topic of Joint Judiciary Hearing at Supreme Court

Arkansans who face criminal prosecution but can’t afford a lawyer have a constitutional right to have an attorney appointed to represent them in court. No such right exists for victims of domestic violence, veterans denied military benefits, children in need of special education, and others who experience civil legal problems. For those individuals, legal aid is often the only source of help.

More than 746,000 Arkansans are eligible for legal aid, yet there are only 50 legal aid attorneys in the state. “You could fill Verizon Arena beyond capacity and ask everyone who has a legal problem to come forward,” said Lee Richardson, Executive Director of Legal Aid of Arkansas. “Then provide one attorney to handle all the issues that come up. That is the scale of what we’re trying to deal with.”

In what is believed to be a first, members of the Joint Judiciary Committee of the Arkansas General Assembly will meet at the Arkansas Supreme Court Justice Building on Tuesday, October 27, 2015 at 10:00 a.m. to hear testimony from the directors of the state’s two legal aid programs—the Center for Arkansas Legal Services and Legal Aid of Arkansas—about the challenges their programs face in trying to meet the overwhelming demand for civil legal help.

Representatives of the Arkansas Access to Justice Commission will also testify about the growing number of Arkansans who are representing themselves in court and the diminishing number of attorneys who live and work in rural areas of the state.

The Joint Judiciary hearing is one of a series of events happening during National Pro Bono Week, October 25-31, to highlight the need for legal aid and recognize the efforts of attorneys across the state who volunteer their time to represent Arkansans who cannot afford legal representation.

Foundation Board Member Gingerich Receives Kenneth R. Palmer Distinguished Service Award

James D. Gingerich, Director of the Arkansas Administrative Office of the Courts, recently was named recipient of the Kenneth R. Palmer Distinguished Service Award. The presentation was made during the joint meeting of the Conference of Chief Justices and Conference of State Court Administrators (COSCA) during their annual meeting in Omaha, Nebraska. The award is presented every other year to a current or former member of COSCA who has demonstrated extraordinary leadership and excellence in judicial administration.

“Gingerich has diligently worked not only to improve the justice system at home, but he has contributed his formidable talents in so many ways to COSCA that it would be simply impossible to list them all,” West Virginia State Court Administrator Steven D. Canterbury said in a letter of nomination.

Among his colleagues, Gingerich is considered a “transformative leader,” helping the courts in his state advance in several areas, such as structural and administrative unification, court technology, problem-solving courts, criminal justice sentencing reform, court financing, access to justice, interpreter services, and court security and emergency preparedness. In 2012 he was inducted into the NCSC Warren Burger Society for his volunteer service with the International Programs Division to improve courts in Kosovo and Haiti.

Gingerich served as COSCA president in 2006 at which time he also served as vice-chair of the National Center for State Courts Board of Directors. He was appointed Arkansas State Court Administrator in 1988 and in that capacity, he also serves as the secretary/treasurer of the Arkansas Judicial Council. Originally from Stuttgart, Gingerich received degrees from the University of Central Arkansas, the University of Arkansas School of Law and the University of Bristol, England. He and his wife, Janet, now reside in Conway.

The Palmer Award was created in 2001 and honors Kenneth Palmer, the former Florida State Court Administrator. At the time of his death, Palmer was one of the longest serving state court administrators in the country.

COSCA is comprised of the chief executives of the court systems in each state, the District of Columbia, and the U.S. territories. The conference is committed to strengthening the judicial branch by improving the quality of state courts and increasing the public’s trust and confidence in the justice system. COSCA works closely with the Conference of Chief Justices, CCJ, which is made up of the top judicial official from each state and territory. The two associations promote the interests and effectiveness of state judicial systems by developing policies and educational programs designed to improve court operations. Both COSCA and CCJ act as the primary representative of the state courts before Congress and federal executive agencies.

The National Center for State Courts, headquartered in Williamsburg, Va., is a nonprofit court organization dedicated to improving the administration of justice by providing leadership and service to the state courts. NCSC provides executive secretariat work to COSCA. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation’s state courts.

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.

Veteran Legal Aid Attorney Receives Equal Justice Distinguished Service Award


Center for Arkansas Legal Services Managing Attorney Dustin Duke is the 2015 recipient of the Arkansas Bar Foundation‘s Equal Justice Distinguished Service Award, according to the Foundation’s Executive Director Ann Pyle. The award, which was presented at a June 10, 2015 awards banquet, is given each year in recognition of commitment to and participation in equal justice program for the poor, including pro bono efforts through legal services programs.

During his 14 years of practice, Duke has served clients through both the Center for Arkansas Legal Services and Legal Aid of Arkansas. In his 11 years with the Center, he has handled more than 3,800 cases, 165 of which were in 2014.  Much of his case work has focused on family law and domestic abuse. In 2014, Duke was among a team of legal aid attorneys who succeeded in getting Arkansas’s criminal eviction statute overturned in the state’s most populous county.

“Dustin is often the first person to arrive at the office in the morning, and the last to leave in the evening,” said Center for Arkansas Legal Services Executive Director Jean Carter. “He works tirelessly to provide his clients with the best possible representation, and his colleagues respect his leadership and his commitment to obtaining justice.”

Policy Brief on Access to Justice in Rural Arkansas Released


Arkansas’s rural communities face a looming crisis when it comes to access to essential legal services: a dwindling and aging attorney population in the state’s 25 most rural counties. A policy brief entitled Access to Justice in Rural Arkansas, released today by the Arkansas Access to Justice Commission, indicates that these counties average fewer than 0.44 practicing attorneys per 1,000 residents. Seven of these counties have no attorneys licensed this millennium, and one has no attorneys at all.

Despite these sobering statistics, there is hope. Many Arkansas law students would consider locating in a rural part of the state if certain incentives were made available. Rural legal aid fellowships, loan repayment assistance, and paid internships are among the programs that a majority of law students showed interest in, according to the survey of law students and attorneys that is the subject of the policy brief. Rural attorneys indicated a greater willingness to mentor and hire young lawyers than did attorneys from non-rural communities.

The survey probed the likely effectiveness of five complementary programs that the state’s two law schools and the Arkansas Access to Justice Commission are jointly considering. Among the factors most likely to encourage students to practice in a rural setting were (1) the ability to have one’s own practice, (2) the opportunity to become a community leader, and (3) the ability to have and maintain their own clientele. Factors most likely to discourage students from locating to rural communities included (1) the perception that they would earn a lower income, (2) a perceived lack of career and economic opportunities, and (3) a relative lack of entertainment, restaurants, and similar amenities.

For questions about the policy brief, which details the results of a series of recent surveys conducted by Prof. Lisa R. Pruitt of UC Davis School of Law, please contact us. A forthcoming article in the University of Arkansas at Little Rock Law Review will provide a more in-depth analysis of the rural access problem and its implications.