Spring/Summer 2016: Closing the Gap: Limited Assistance Representation and Reaching Litigants Without Lawyers

by Valerie Qian

I was recently retained on two different cases to represent clients on a Limited Assistance Representation (LAR) basis. As with most of my cases, the first thing I did after finalizing the retainer agreement was pick up the phone and call my sister counsel. Frustratingly, both opposing counsel responded that they would not speak with me further until I “filed an appearance.” After some pushback from myself, and I believe after they had each reviewed the language of the LAR rule (the full SJC Standing Order on LAR is available here), both finally agreed to speak with me. Happily one of those cases – a fairly high-conflict case in its third modification since the divorce – settled just before I began this article. My sister counsel, who has represented the wife in this case since the divorce, cheerfully retracted the reservations about LAR that she’d expressed (very candidly) to me at the beginning.

These cases highlighted for me two obstacles that have led LAR to be seriously undervalued and underappreciated by lawyers: 1) nobody knows what LAR is, and 2) nobody realizes what a great opportunity for business it is. As Chief Justice Angela M. Ordoñez, in a telephone interview for this article, explains: “one of my goals and objectives in this department is to increase lawyer retention, and we have an enormous amount of unrepresented litigants, and a small percentage of represented litigants. We could close that gap significantly with LAR.” The Chief Justice, a distinguished member of the bench since 2000 and Chief Justice of the Probate and Family Court since July 2013, has been a longtime advocate for LAR as a means to increase access to justice.

The corollary of lawyers not knowing about LAR is, to continue with Chief Justice Ordoñez, “not enough regular people know about it” either. “People - the audience, so to speak – just don't know about it.” The Chief Justice relates a story from when she spoke with thirty-five women at Dress for Success Boston last November. The women were in various stages of life and employment, facing a wide range of issues relating to housing, estate planning, and the like. “Many of them wanted to connect with a lawyer,” the Chief Justice says. “Not one of them knew about LAR.”

Hon. Edward M. Ginsburg, Associate Justice of the Probate and Family Court for almost 25 years until his retirement in 2002, chaired the LAR Advisory Group which formulated the first LAR pilot project in the state. He echoes the Chief Justice in highlighting the enormous opportunity with LAR both for lawyers and potential clients: “unbundling can be a win-win for all concerned. Clients can get legal help they can afford and lawyers can get legal work where the opportunity would not have existed without LAR.”

The sad consequence of our ignorance is that by overlooking LAR, attorneys fail to extend our hands to help those who most need it. If there is any vestige of the bright-eyed, bushy-tailed lawyers we were when we emerged from law school ready to change the world, we owe it to ourselves and to the practice to acknowledge the most important benefit of LAR: that with it, many who cannot afford a lawyer, and who most need one, can have one. 

What is LAR?

So what is LAR? Limited Assistance Representation is when an attorney represents a party for any portion of his or her case, but not the whole. Once the LAR attorney’s portion is complete, the client re-assumes full responsibility for her case. Another term for LAR that you may have heard: “unbundling.” LAR has been recognized in the Probate and Family courts across the state since May 1, 2009 and also exists in the District, Land, Housing and Boston Municipal Courts of the state. See former Chief Justice Paula Carey’s memo on LAR here. Ilene Mitchell, Esq., Assistant Deputy Court Administrator of the Probate and Family Court, indicates that there are currently approximately 2,000 certified LAR attorneys in the Probate and Family Court Department statewide.

Some examples of portions of a case that an LAR attorney could assist a client with:

1)      Representing a client at a particular court hearing, perhaps one that a client is particularly nervous or unsure about, or one that is particularly important for setting the tone in a case, for example a Motion for Temporary Orders;

2)      Representing a client in an out-of-court settlement conference, negotiating with the opposing party and his/her counsel, perhaps so that a client can feel more comfortable making or accepting settlement proposals; 

3)      Drafting court pleadings (“ghostwriting”), including responses to formal discovery requests, or an initial Separation Agreement or potential Stipulation; and

4)      Advising a client outside of court on his/her case.

This list is far from exhaustive, and both attorneys and litigants would be well-served if they strategized creatively about when it would be most helpful for a case for an attorney to be involved. LAR attorneys should just be mindful to very carefully delineate in their retainer agreement exactly the portions of the case that they will be responsible for, and exactly what portions of a case a client will be responsible for.

Some FAQs about LAR:

Does the LAR attorney need to file a Notice of Appearance with the court? It depends. A Notice of LAR Appearance (available on the court website here) should be served on the court and opposing counsel in all situations when an LAR attorney is appearing at a court hearing. No Notice of LAR Appearance is required if an attorney is not appearing in court on an LAR case – for example, if an attorney is just ghostwriting a pleading, or representing a client at a Four-Way Settlement Conference. Immediately upon the completion of an LAR court appearance, the LAR attorney should file a Notice of LAR Withdrawal (form available here) with the court. No hearing is required in order to withdraw an LAR appearance. The attorney who enters an LAR appearance should receive a copy of all orders entered for that particular appearance, and thereafter court correspondence (and opposing counsel’s correspondence) should be directed back to the client.

Do I have to sign my name on pleadings that I ghostwrite? No. The client should sign and file a ghostwritten pleading. The LAR attorney should just include a footer on every page stating that the document was “prepared with assistance of counsel.” A good practice is to pdf your documents before you send them to your client, so that your client will not then modify a document in a way that might weaken an argument you’ve made, or unintentionally waive a legal claim or right. Note that if you do sign a pleading, you will be entering a general appearance and no longer be considered LAR.

Do I have to talk to an opposing party’s LAR counsel if he/she is not appearing in court and will not be filing an LAR appearance? Yes! An opposing party with LAR counsel is just as much a represented party as an opposing party whose counsel has entered a general appearance.

See a more complete court-issued FAQ for probate and family judges, courts and lawyers on the court website here.

Is it bad for the practice? Why is it good?

If you are still skeptical about LAR, here are some further common objections to LAR which I believe can be rebutted. Many attorneys are concerned about out-of-court LAR negotiations. What if, after making progress on a case with an LAR opposing counsel, the opposing party misrepresents or undoes the progress you made with your LAR opposing counsel when you later go to court? The simple response to this is that it is better to have opposing counsel present for part of a case than not at all, if you have a difficult opposing party. With cases like this, the LAR attorney should be mindful of discerning the best stage of her LAR client’s case to get involved in. If the LAR attorney knows her client may forget or become confused about the outcome of an out-of-court negotiation without a lawyer to explain a Stipulation in court the next day, for example, she might advise the client that the better place for her to have an attorney would be at a temporary order hearing, rather than a Four-Way.

The other common concern is that clients will start hiring attorneys on an LAR basis instead of for “full” representation. This is a needless fear; the smartest and most sophisticated clients (best equipped, one might suppose, to handle matters pro se) know best how much they need legal expertise. They are not a subset of the population we need to worry about losing. LAR reaches a client base that would otherwise be pro se. It is a way to increase the pool of clients for the profession overall. As the Chief Justice states, “the percentage of unrepresented litigants is so high, I think there is a vast market for LAR that will never hurt the ‘regular practitioner,’ so to call them.”

The list of the pros of LAR is much longer than the list of potential concerns. I have already discussed at length the most important benefit of increasing access to justice for lower-income clients. Beyond this, LAR is also good for new lawyers, who might not be in a position to charge larger retainers or be able to attract clients who can afford to hire them through the full course of a litigation. LAR also makes work easier for courts, reducing the numbers of pro se litigants, and increasing the numbers of attorneys. LAR makes work easier for opposing counsel, who can negotiate with a lawyer rather than a pro se litigant. LAR allows you to take on a case with a difficult client, whom you might be willing to help for a portion of her case, but frankly might not want to be stuck with forever. LAR is a good way to control your caseload – it is much easier to predict how much time you will need to spend on one discrete court hearing, than an entire litigation – and a way to be able to better control and predict your client’s costs (and thus make sure you get paid). And finally, LAR is flexible. You can do as little or as much work as you and your client feel is necessary for her case. You can file further Notices of Limited Appearance; or decide after helping her with an out-of-court negotiation that no court appearance is necessary.

In a sense, the way LAR dissects a family law case smells a little like the way lawyers carve out parts of a family-law case for non-attorney professionals to handle. Financial planners, therapists, parenting coordinators or GALs can assist lawyers in finding the best solutions for our clients – and perhaps do it better than a lawyer trained in addressing the legal aspects of a family’s problems. In the same way, it could be beneficial to a large portion of potential family-law clients to dissect their case into parts that could most benefit from the help of a lawyer, and parts that they could handle on their own without incurring the costs of an attorney. There should be a broader way to look at a family law case. A family is much more than what happens in the courtroom and what lawyers can do.

Additional links:

Trial Court LAR website – information on trainings, the Standing Orders on LAR, LAR forms

Court list of LAR-certified attorneys in Massachusetts

Court list of LAR-certified attorneys speaking alternate languages

Court form to update your LAR profile

Valerie Qian is a Senior Associate at Skylark Law and Mediation, P.C.  She is a family law litigator, trained mediator, and collaborative divorce attorney, and also advocates for youth in the juvenile justice system on the Committee for Public Counsel Services Grant of Conditional Liberty panel. Valerie was born in Wisconsin, grew up in Hong Kong, and has been in the Boston area since 2004. She received her B.A. in English (magna cum laude) from Wellesley College in 2008, and her J.D. from Boston University School of Law in 2011. Valerie was admitted to the Massachusetts Bar in November 2011. She is conversant in Cantonese and Spanish, and has a working knowledge of Mandarin. 

Valerie serves as a pro bono attorney for the Women’s Bar Foundation’s Family Law Project and as Lawyer for the Day in the Marlborough Probate and Family Court through MetroWest Legal Services, and is also a member of the Boston Bar Association Newsletter Committee for the Family Law Section, the Massachusetts Council on Family Mediation, the Asian American Lawyers Association of Massachusetts, and the Wellesley College Alumnae of Boston.