ICYMI: Annual IOLTA Compliance Certification Requires Review of Unclaimed, Unidentifiable Funds

Every year, Arkansas attorneys who renew their law licenses are required by Arkansas Rule of Professional Conduct 1.15 to certify their compliance with court rules governing client trust accounts. In 2016, the Arkansas Supreme Court adopted rules that address how attorneys who handle client funds are supposed to deal with account balances that have gone unclaimed by a client entitled to the funds or that the attorney cannot trace to a rightful owner. Those rules require an attorney to remit unclaimed or unidentifiable funds to the Arkansas Access to Justice Foundation if, after a period of two years, the attorney is unable to identify or locate the person entitled to such funds.

Beginning with this year’s IOLTA Compliance Statement, attorneys who handle client funds are required to certify that they have made a determination as to whether any of the client funds they manage include any unclaimed or unidentifiable funds. This certification is can be made by returning a hard copy of a completed, signed IOLTA Compliance Statement with the attorneys license fee payment, or by completing the required certification online.

The deadline for completing the IOLTA Compliance Statement for 2018 is March 1, 2018.

Arkansas Supreme Court Authorizes Ghostwriting, Expands Unbundling Guidance

In an opinion handed down December 14, the Arkansas Supreme Court adopted the final round of rule changes that clarify the obligations under the Rules of Professional Conduct and Rules of Civil Procedure of attorneys who provide unbundled legal services. Also known as “limited scope representation” or “a la carte legal services,” unbundling allows for a client to hire an attorney to help with some, but not all, of that client’s legal matter. Such representation can include legal advice, document preparation, document review, or limited appearances on behalf of the client.

The opinion includes changes to Rules 11 and 64 of the Arkansas Rules of Civil Procedure, and adds a new Rule 87. These changes explicitly authorize ghostwriting, lay out a process by which an attorney attorney offering unbundled services can put a court on notice of the extent of representation, and provides for termination of representation without leave of the court upon the filing of a notice of completion of the matter.

The rules, as adopted, substantially track the original proposal of the Arkansas Supreme Court Committee on Civil Practice. The only substantive change made is that attorneys who ghostwrite pleadings must disclose their identity in a notation at the end of the document, rather than simply indicating that it was prepared with the assistance of an Arkansas-licensed attorney pursuant to Arkansas Rule of Professional Conduct 1.2(c).

Interested in learning more about these rule changes? Join us for a webinar entitled “How to Ethically Unbundle Your Practice” on January 24, 2018 at noon. We’ll cover these rule changes, the Rules of Professional Conduct that authorize unbundling, and more! Sign up here. 

Campaign for Legal Aid Launches

We are launching our annual Campaign for Legal Aid to raise funds to support life-changing legal help for vulnerable Arkansans. Check out this video from our Executive Director, Amy Johnson, about why we need your help and the difference that you can make.

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.