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Kentucky Supreme Court Approves Limited Representation Agreements

A limited representation agreement is an agreement where a lawyer agrees to undertake some services for a client, but does not agree to handle the client’s entire case. One example of a limited representation agreement is where a lawyer agrees to help a pro se litigant by writing briefs or discovery materials but does not agree to go to Court or handle depositions. Some courts have resisted these agreements and have sanctioned lawyers who have agreed to provide limited services to clients.

In Persels & Associates, LLC v. Capital One Bank, (USA), N.A., 2012-CA-001447-MR, the Supreme Court of Kentucky heard an appeal by three lawyers who entered into limited representation agreements with pro se clients and were sanctioned by a trial court judge.

Sarah Jackson and David Thomas, individual debtors, retained two lawyers to provide limited representation. According to the opinion, the limited representation agreements provided that neither lawyer “was required to sign pleadings, enter an appearance, or attend court proceedings.” Instead, the lawyers assisted the debtors in preparing pleadings. In 2011, the Circuit Court ordered the two lawyers to appear and show cause why they should not be held in contempt. After a hearing the Court held that the lawyers violated Kentucky’s Rule of Civil Procedure 11 and fined each of them $1.00.

The Kentucky Supreme Court reversed the decision and held that such agreements “are permissible so long as they are reasonable under the circumstances and otherwise comport with our rules of practice and procedure….” The Court noted that Kentucky Rule 3.130 (similar to Illinois Rule 1.2) 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.” Further, the Court noted that in 1991, the Kentucky Bar Association issued an opinion interpreting Rule 1.2 which provided that a lawyer could enter into a limited representation agreement with an indigent pro se defendant.

The Court also noted that many indigent litigants cannot afford to pay for the full scale services of a lawyer. It wrote: “The trial court looked askance at the litigants for proceeding pro se while possessing some resources with which to pay a lawyer. However, there are simply no facts in this case demonstrating that the litigants possessed sufficient resources to hire the complete services of a lawyer. To the contrary, the litigants here were being sued by multi-national banks for failure topay their unsecured debts, thereby inferring limited financial resources on their behalf.” The Court further noted that the legal profession has always encouraged lawyers to represent indigent litigants.

The court held that Rule 11 does not apply to a limited representation agreement. The requirements of Rule 11 were satisfied because the pro se litigant was required to sign each pleading filed with the court. As the court noted, “whether a limited-representation agreement is reasonable has nothing to do with the signing of pleadings.” Thus, the appropriate inquiry is to determine whether the limited representation is reasonable.

The Court reversed the decisions of the Court of Appeals and the Circuit Court and remanded the case for the trial court to determine the reasonableness of the agreements.

Edward X. Clinton, Jr.

The Clinton Law Firm