Saturday, April 4, 2015

Limited representation arrives in Maryland!

Here is the current reality in Maryland if you are served with a court summons and complaint:

  • You didn't choose to get sued, and now you are forced to defend yourself and also assert your own claims against the folks suing you.
  • Your money is tight, and legal fees are not part of your budget. And this is true whether you are an individual or owner of a corporate entity.
  • You want to hire a lawyer to help through critical parts of your case, like drafting a court document or appearing for a deposition, settlement conference or motion hearing, but the lawyers you interview only quote fees to take over your entire case until the end--and you can't afford it!
Maryland's current court rules simply do not permit a lawyer to enter his appearance in your case for only one limited event- that one deposition or one court hearing.  The rules require entry of a general appearance which commits the lawyer to remain in your case to the end, unless he formally withdraws under a sometimes complicated process. The current rules do not guarantee against a lawyer being forced to continue in the engagement despite not getting paid by you. There are many examples where judges have required lawyers to stay in a case despite requesting to withdraw for non-payment.

As a result, you currently cannot hire a lawyer to appear with you for one limited event.

This will change on July 1, 2015 when the current rule is amended to permit the entry of a limited appearance under certain circumstances.  The guts of the new rule say that
[a]n attorney, acting pursuant to an agreement with a client for limited representation that complies with Rule 1.2(c) of the Maryland Lawyers' Rules of Professional Conduct, may enter an appearance limited to participation in a discrete matter or judicial proceeding...
 This is a huge deal for you, the consumer of legal services.  You may now  hire a lawyer to appear in court for one event.

How does it work?  First, you will have a written fee agreement with the lawyer that describes the limited purpose of the engagement. By way of example, an agreement may say "attorney agrees to appear for and with client at the motion hearing now scheduled for Monday..." And make sure the agreement anticipates some preparation time by the lawyer in advance of the hearing. You might also include language that covers unanticipated rescheduling of a hearing because of weather or illness.

Second, you will sign a form that gets filed in the court case which describes the limited engagement. The rule describes exactly what must be in the form, and you will just check a box and sign at the bottom. This form gives notice to everyone else involved in the case that your lawyer will only appear for a limited purpose at one event.

Third, you must pay your lawyer the agreed fee!  This part of the lawyer/attorney relationship does not change. But with the agreed limitation on the scope of his engagement, you will pay less!

We do anticipate some issues that the new rules cannot address, including how notices of limited engagement will be handled by the court clerks. The new rule means that the court's computer systems will have to change to track limited entries of appearance.  Even now, the court's computer system will continue to mail court notices to lawyers who have formally been withdrawn from cases, and so we do not expect the problem to lessen with this new rule. In fact, limited engagement lawyers should expect to receive continued court notices of events even when the limited engagement has ended.

And our beloved judges are another wild card.  They do have the authority (or, they believe they have the authority) to hold lawyers in cases to avoid prejudice to clients and the justice system, even when they have not been paid and requested to withdraw. It is conceivable that even where a proper limited engagement has been entered that a lawyer could be forced to continue in a case.

But these risks are slight, and we applaud Maryland's attempt to make civil justice more accessible and affordable to a broader range of folks.  You will still have to pay legal fees to hire a good lawyer suited to your limited event,  and you should expect to pay for the time a lawyer needs to prepare for the event. But with this new rule you may avoid having to shell over a traditionally large retainer that anticipates a long engagement.