The Supreme Court of South Carolina

Request for Written Comments

The South Carolina Bar has proposed a number of amendments to various court rules to implement limited scope representation in South Carolina.  In limited scope representation, a lawyer handles a discrete portion of the matter, and the client handles the remainder of the matter on his or her own.  Further resources concerning limited scope representation, generally, may be found on the American Bar Association's Website at: https://www.americanbar.org/groups/delivery_legal_services/resources.html. 

The Supreme Court referred the Bar's proposals to the South Carolina Access to Justice Commission for further study.  The Commission is now considering submitting proposed amendments to several court rules to the Supreme Court, and the Commission seeks written comment from the public concerning the merits of the various rule change proposals.

Persons desiring to submit written comments should submit their comments to the following email address, limitedscopecomments@sccourts.org, on or before September 19, 2018.  Comments should be submitted as an attachment to the email as either a Microsoft Word document or an Adobe PDF document.

SERVICE ISSUES IN LIMITED SCOPE APPEARANCES

The South Carolina Access to Justice Commission is considering recommending to the Supreme Court that Rule 5 of the South Carolina Rules of Civil Procedure be amended by adding the following to paragraph (b) of the rule:¹

(b)(4) Service in Limited Scope Matters. When an attorney makes a limited scope appearance in a matter pursuant to Rule 11(e), service shall be made upon the attorney until the attorney withdraws by filing and serving a Notice of Completion of Limited Appearance or until the limited scope attorney is otherwise relieved by the court. Where an attorney who makes a limited scope appearance is served with a paper, pleading, or other paper after withdrawing in the limited scope matter, the attorney shall promptly forward the document to the client.  

The Commission is also considering amending Rules 4.2 and 4.3 of the Rules of Professional Conduct, which are found in Rule 407 of the South Carolina Appellate Court Rules.  Comment 2 to Rule 4.2 would be amended to provide:

[2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. In cases where a limited scope appearance is made on behalf of a person in a matter where limited scope appearances are permitted under court rules, the person shall be considered represented when the lawyer is provided with written notice of a limited scope appearance in the matter.

New Comment 3 would be added to Rule 4.3, to provide:

[3] In cases where a limited scope appearance is made on behalf of a person in a matter where limited scope appearances are permitted under court rules, the person shall be considered represented when the lawyer is provided with written notice of a limited scope appearance in the matter.

LIMITED SCOPE APPEARANCE AND WITHDRAWAL PROCESS

The Commission is further considering proposing to the Supreme Court that Rule 1.2(c) of the Rules of Professional Conduct, as well as Comment 8 to Rule 1.2, be amended to provide:

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Where a lawyer wishes to make a limited scope appearance on behalf of a person in a matter where limited scope appearances are permitted under court rules, the agreement shall be in a writing signed by the client.

.     .     .

[8] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6. For example, a lawyer who is appointed as counsel may not seek to limit the scope of representation in that matter, and any agreement between the lawyer and the client to provide limited scope representation may not result in hybrid representation in the filing of documents or the conduct of hearings or trials.

The Commission is considering recommending Rule 11 of the South Carolina Rules of Civil Procedure be amended to provide for a method of making a limited scope appearance and withdrawing from a matter. 

(e) Limited Scope Appearance in Court. In accordance with Rule 1.2(c) of the South Carolina Rules of Professional Conduct, an attorney may make a limited scope appearance for a self-represented party in a specified civil or family court hearing when the attorney has entered into a written agreement with that party to provide limited scope representation.   

(1) Notice of Limited Scope Appearance. To make a limited scope appearance, the limited scope attorney must file and serve a court-approved Notice of Limited Scope Appearance form specifying the hearing for which the attorney is making a limited appearance prior to or simultaneous with the hearing. If the attorney appears at a hearing on behalf of a party pursuant to a limited representation agreement, the attorney shall notify the court of that limitation at the beginning of that hearing. The attorney may make more than one limited appearance in a matter. 

(2) Notice of Completion and Withdrawal. Upon conclusion of the hearing in which an attorney has made the limited scope appearance, the attorney may withdraw from the action by filing a Notice of Completion of Limited Scope Appearance form, together with proof of service on the party and all other parties to the action. The attorney's withdrawal is effective upon the filing and service of the Notice of Completion of Limited Scope Appearance without further action by the court. The attorney shall include the current address and telephone number of the party on the Notice of Completion of Limited Scope Appearance form.

(3) Hybrid Representation Prohibited. An attorney making a limited scope appearance pursuant to this rule shall be considered the attorney for that party for all matters and will remain counsel of record until the attorney properly withdraws. The attorney and the party may not divide argument or argue on the same legal issue, and all documents must be filed by the attorney during the period of the limited appearance.

PREPARATION OF PLEADINGS

Finally, the Commission is considering three options with respect to the preparation of pleadings in limited scope matters.  The first does not require that the attorney be identified; the second requires the self-represented party indicate that the pleading was prepared with the assistance of a South Carolina attorney; and the third requires that the attorney be specifically identified in the pleading.  All three proposed amendments would add new paragraph (f) to Rule 11 of the South Carolina Rules of Civil Procedure.

Option 1:

(f) Limited Scope Preparation of Documents. An attorney may draft or help draft a pleading, motion, or other paper filed by an otherwise self-represented person. The attorney need not be identified or sign the pleading, motion, or other paper. In providing such drafting assistance, the attorney may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which case the attorney must make an independent reasonable inquiry into the facts. Limited scope assistance provided under this rule does not constitute an appearance in the matter.

Option 2:

(f) Limited Scope Preparation of Documents. An attorney may draft or help draft a pleading, motion, or other paper filed by an otherwise self-represented person. The attorney need not be identified or sign the pleading, motion, or other paper, but the pleading shall include a statement following the signature of the self-represented person stating "Prepared with the Assistance of a South Carolina Attorney." In providing such drafting assistance, the attorney may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which case the attorney must make an independent reasonable inquiry into the facts. Limited scope assistance provided under this rule does not constitute an appearance in the matter.

Option 3:

(f) Limited Scope Preparation of Documents. An attorney may draft or help draft a pleading, motion, or other paper filed by an otherwise self-represented person. The attorney need not sign the pleading, motion, or other paper, but the pleading shall contain the notation "prepared with the assistance of counsel" and shall state the attorney's name, address, telephone number, and bar number.  In providing such drafting assistance, the attorney may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which case the attorney must make an independent reasonable inquiry into the facts. Limited scope assistance provided under this rule does not constitute an appearance in the matter.