Hire A Divorce Attorney Or Save Money With Limited Representation?
When married couples decide on a divorce, a number of things can happen. When one party decides to file for the divorce, they can either attempt the divorce pro se (without a lawyer) or hire an attorney. There is another option.
The middle ground occurs when firms and divorce attorneys offer “unbundled legal services.” This is also called “limited scope representation” and occurs when a divorce attorney or firm reviews or creates the documents, and informs the pro se filer when and where to file, but does not offer any other legal advice. Essentially sending you on your way with a “complete” divorce packet.
After the documents are prepared, the divorce can continue without attorney representation.
Limited representation arrangements are relatively new in Ohio. While designed to help consumers with “low cost” representation options in simple divorces cases, they can also create a quagmire between the Ohio Rules of Professional Conduct and a lawyer’s duty to represent their client to their fullest ability. According to the ORPC 1.2, an attorney and client may limit the scope of the attorney’s representation given that the limitations are “reasonable.”
The “reasonableness” factor is very important to analyze carefully because conflicts of interest must be avoided. For example, in Toledo Bar Assn. v. Pheils, 129 Ohio St. 3d 279 (2011), an attorney attempted to limit his scope of representation and tried to represent a lender and a borrower in a loan matter. This was deemed a conflict by the courts, and the attorney was required to withdrawal.
Another issue that arises with limiting representation is actually sticking to that limited scope of representation. In Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio), a court ruled that because of the substantial help a pro se filer had received from an attorney, the attorney must sign the filed document. Officially ruling that, “If a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.” Id.
Significant financial benefits can result for consumers now that lawyers are able to offer “unbundled” services in certain situations. Reduced legal fees could allow more people to be able to obtain some guidance when filing for divorce. The reduced fee is often significantly lower than retaining counsel for the entire divorce case representation. Limited representation is not recommended by most divorce lawyers in most domestic relations cases. The complexities of a divorce can cause problems when using limited representation. Most often appropriate representation requires significant research, filings, discovery, and investigation that that only highly skilled family law attorneys can provide. You should very carefully evaluate if you need full representation and when limited representation may work. While saving money is commendable, evaluate the prudence and possible risks of that decision. Talking with several experienced family law attorneys about the complexities of your divorce case is wise.
No Limited Representation For Couples Seeking Joint Representation
Limited Representation is also not available when couples want joint representation. The Ohio Rules of Professional Conduct limit joint representation significantly, requiring both parties to sign waivers and be fully informed. There can be significant problems in joint representation; the main problem is confidences. If one party decides that the joint representation isn’t working, it can cause a pretty thick mess. Limited representation with joint representation would cause significant problems and ethical issues, leaving parties needing more guidance. This is why an attorney in Ohio entering into a limited representation arrangement cannot represent both parties. So, to be clear, a lawyer cannot ethically represent both parties in a divorce or dissolution matter due to the obvious conflict of interests of the parties.
The “Middle Ground” For Less Complicated Divorce Cases
While there are significant rules that must be followed when offering limited representations, the benefits can be great for obtaining effective legal assistance and saving some money during a time period which can be extraordinarily expensive. This “middle ground” approach is one that perhaps should be considered in cases without real estate, children, retirement accounts, or other complicating issues. Don’t be surprised when you discuss this that most lawyers will discourage it. Malpractice insurance carriers will tell lawyers of the perils associated with taking on limited representation matters.
For more information on this subject please read the excellent article written by psychotherapist, Donna F. Ferber, addressing why a divorce action should generally NOT be a “do-it-yourself” proposition. Click here to read it.
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.