LSRs are not for all clients or for all types of problems. When assessing whether a LSR is reasonable, lawyers must consider: • the capability of the client;
• the nature and importance of the legal problem;
• the degree of discretion held by the decisionmaker; • the type of dispute resolution mechanism; and
• the availability of other self-help resources.
Some writers on the topic believe that some help is better than none, even for a client who may not be able to follow through effectively. Others are of the view that, if the circumstances make it difficult to effectively assist the client, the lawyer should either decline to act or provide full service for a reduced fee.
The client must understand and acknowledge the limitations on the scope of services being offered, any associated risk, and must provide informed consent. To obtain informed consent, the lawyer must explain the risks of a limited retainer as well as available alternatives. For example, lawyers should tell clients that they may face unexpected legal or evidentiary issues which they will not be able to understand or manage. Lawyers should advise a client if a matter is too complex and recommend that the client seek more extensive legal services.
Lawyers may not be able to limit their liability to clients and still have a duty to competently perform the services contemplated in the retainer. The LSR is not an excuse to engage in “lawyer lite” services. The scope of work may not be so limited that the lawyer has no obligation to provide meaningful advice. Sometimes it is simply not possible or reasonable to provide limited scope services. The nature of the client is also a matter to consider before entering into the LSR. The ideal LSR client is: • Emotionally detached from the problem;
• Willing and able to handle legal paperwork; • Able to gather and analyze financial information;
• Reasonably decisive;
• Willing and able to handle details and follow through with obligations;
• Able to find the time to perform the delegated tasks; • Able to read and write (in an official language);
• Not suffering from emotional or mental disorders; and • Self-motivated.
Clients who cannot understand the limits of the representation or who may not be able to perform delegated tasks are not appropriate candidates for the LSR. Establishing the Retainer New Rule 2.02(1.1) states:
2.02(1.1) Before undertaking a limited scope retainer, the lawyer must advise the client about the nature, extent, and scope of the services that the lawyer can provide, and must confirm in writing to the client as soon as practicable what services will be provided.
The rule requires that the LSR must be confirmed in writing, though the commentary recognizes an exception if the client is receiving short term legal services or summary advice. The exception also applies if the lawyer is providing advice in an initial consultation prior to being retained. The Code now provides the following guidance to lawyers entering into LSRs:
• The lawyer should explain the scope of the legal service and confirm the client’s acknowledgement and understanding of the risks and limitations of the LSR in writing;
• If a lawyer is providing advice based only on information provided by the client, the lawyer should qualify it by stating that it is based on limited information and may change with additional information (see commentary to Rule 2.01(2)). Without this qualification, Limited Scope Retainers | 11