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Limited Scope Retainer

Limited scope retainers have been recognized as one way of increasing access to justice. Such arrangements offer clients a cost-effective way to obtain legal representation when they do not qualify for legal aid, cannot afford legal representation for their entire matter, or might otherwise choose to represent themselves.

This resource defines limited scope retainers, highlights some common pitfalls, outlines lawyers’ and paralegals’ professional obligations, provides practice tips for managing risk, and directs lawyers and paralegals to other supports and resources.

Definition

A limited scope retainer is a retainer in which a lawyer or paralegal, by agreement with the client, provides legal services for part, but not all, of the client’s legal matter. For example, a client may retain a lawyer or paralegal to perform one of the following discrete legal tasks: legal research, legal advice, document preparation, legal coaching, or representation at a specific stage of a matter (e.g., mediation, motion, or case conference). This is commonly referred to as unbundling legal services or discrete task representation.

Common Pitfalls

Lawyers and paralegals should be mindful of the following common pitfalls associated with providing unbundled legal services:

  • Failing to check for conflicts of interest.
  • Failing to conduct a competent investigation of the facts and issues in the client’s matter.
  • Accepting limited services that are unreasonable or inappropriate for the client or client’s legal matter.
  • Failing to clearly outline what tasks the lawyer or paralegal will be responsible for, and to ensure the client understands the limits of the services provided and/or the consequences or risks associated with those limits.
  • Providing additional services outside the scope of the retainer without amending the existing retainer or executing a new retainer.

Professional Obligations and Practice Tips

Lawyers and paralegals must understand their professional responsibilities under the Rules of Professional Conduct (“Rules”), the Paralegal Rules of Conduct (“Paralegal Rules”), the Paralegal Professional Conduct Guidelines (“Paralegal Guidelines”), and By-Laws made under the Law Society Act to avoid common pitfalls in delivering unbundled legal services. The Law Society of Ontario has prepared the following list of professional obligations and practice tips to assist. Unless otherwise noted, the professional obligations lawyers and paralegals owe to limited scope clients are the same as those owed to any other client.

  • 1. Conduct a conflict check
    Lawyers and paralegals have a duty to avoid conflicts of interest. A conflict of interest can arise from the lawyer or paralegal’s responsibilities to another client, a former client, or a third person, or from the lawyer or paralegal’s own interests.

    The obligations to identify and avoid conflicts of interest apply to limited scope retainers.

    Note: Where the services being provided by the lawyer or paralegal fall within the definition of short-term legal services, such as services provided through a not-for-profit legal services provider, lawyers and paralegals may provide such services without first taking steps to determine if there is a conflict. If the lawyer or paralegal has actual knowledge of a conflict of interest, the lawyer or paralegal must not provide or must cease providing services.
    • Requirements
      • Ensure you understand your professional responsibility to detect and avoid conflicts of interest. See:
       
      • Determine whether the services the client is seeking fall within the definition of short-term legal services. See:  
       
      • If you are not providing short-term legal services, conduct a conflict check before speaking or meeting with the client and agreeing to provide limited scope services. See:
       
      • If a conflict of interest is identified that cannot be resolved in accordance with your professional obligations, decline the retainer. See:
  • 2. Assess your level of competence to provide limited legal services
  • 3. Determine whether limited scope representation is appropriate
    Limited scope retainers are not appropriate in all circumstances. As part of the duty to provide competent legal services, lawyers and paralegals must use their professional judgment to determine whether providing limited legal services is appropriate considering the nature of the legal matter and type of client.

    Nature of the legal matter: A client’s legal matter may be too complex or intertwined with other legal issues beyond the lawyer or paralegal’s expertise for the lawyer or paralegal to be able to provide effective limited representation.

    Type of client: A lawyer or paralegal may be asked to provide legal services under a limited scope retainer to a client with diminished capacity or language barriers. In such a situation, lawyers and paralegals must carefully consider and assess if, under these circumstances, it is possible to render those services in a competent manner.
     
    • Requirements
      • If providing limited services to a client who appears to have diminished capacity, ensure you understand and comply with your professional obligations with respect to such clients. See:
        • Rules 3.2-9 of the Rules
        • Rules 3.02(13)-(14) of the Paralegal Rules, Section 3.1 of Guideline 6: Competence and Quality of Service and Sections 11-12 of Guideline 7: Advising Clients of the Paralegal Guidelines
    • Practice Tips
      • Use the initial client meeting to assess whether the matter and client are appropriate for a limited scope retainer.
        • Ask questions and avoid making assumptions about the matter. In some cases, a limited role may not be appropriate as it precludes a fulsome investigation of relevant facts or complete legal analysis of a matter.
        • Develop and use a client intake form. Such forms assist with completeness and consistency of your intake process and document your file.
       
      • Be cautious when a prospective client
        • attempts to pressure you to provide limited scope representation in an emergency. Consider whether the timeline would allow you to provide competent service or whether there might be a way to move the deadline;
        • has retained several successive lawyers or paralegals on the same case. Make inquiries about why representation has changed. Consider whether the explanation the client provides is reasonable or a flag that the relationship with the client may be challenging; or
        • has unrealistic expectations about what can be achieved through self- or limited scope representation or in the matter generally. While expectation management is part of a lawyer or paralegal’s role, through discussion with the prospective client, assess whether they are willing or able to adjust their expectations. If, in your assessment, they are not, consider declining the representation.
  • 4. Ensure the client is fully informed about the scope and limitation of legal services
  • 5. Confirm the scope of the limited retainer in writing and provide the client with a copy
    Lawyers and paralegals must confirm legal services to be provided under a limited scope retainer in writing. This is generally done by way of a written retainer or engagement letter.  Reducing to writing the discussions and agreement with the client about the limited scope retainer assists lawyers, paralegals, and clients in understanding the limitations of the service to be provided and any risks of the retainer.

    Once the limits of the retainer have been clearly stated in writing, the lawyer or paralegal must give the client a copy of the document when it is practicable to do so. In certain circumstances, such as when the client is in custody, it may not be possible to give the client a copy of the document. In this case, the lawyer or paralegal should keep a record of the limited scope retainer in the client file and, when practicable, provide a copy of the document to the client.    
     
  • 6. Document completion of the limited scope services
    Lawyers and paralegals should confirm with the client when the limited scope services are complete.

    For greater clarity and to avoid misunderstanding, lawyers and paralegals may also consider reminding the client of the steps that may still need to be taken in the client’s legal matter, but for which the lawyer or paralegal was not retained. This may include a recommendation that the client seek legal advice on matters that fall outside the scope of the retainer.
     
    • Requirements
      • Understand and comply with your withdrawal obligations at the conclusion of the retainer. See:
    • Practice Tips
      • Modify and use your standard closing letter for limited scope retainers.
       
      • Unless outlined in an amended or new limited scope retainer, refrain from assisting a client after completion of a limited scope retainer.
  • 7. Consider and plan for communication issues

    A lawyer or paralegal providing legal services under a limited scope retainer should be careful to avoid acting such that it appears that the lawyer or paralegal is providing services to the client under a full retainer. 

    Court or Tribunal: Where the limited services being provided include an appearance before a court or tribunal, the lawyer or paralegal should consider whether the existence of the limited scope retainer should be disclosed.  Specifically, lawyers and paralegals must be careful not to mislead the court or tribunal as to the scope of the retainer and should consider whether disclosure of the limited nature of the retainer is required by the rules of practice or the circumstances.  Where appropriate under the rules of the tribunal, the lawyer or paralegal may consider also providing notice to the tribunal that the retainer is complete.                                 

    Opposing Party or Representative: A lawyer or paralegal who is providing legal services under a limited scope retainer should also determine how communications from the opposing party should be managed.  The lawyer or paralegal should consider whether to obtain instructions from the client to disclose the limited nature of the representation to the opposing party or, if represented, to the opposing party’s representative. 

    Unless an opposing legal practitioner receives written notice of the limited nature of the legal services being provided by a lawyer or paralegal, and the approach, communication, or dealing falls within the scope of the limited scope retainer, the opposing legal practitioner may, without the consent of the lawyer or paralegal, approach, communicate, or deal directly with the person on the matter.    

    • Requirements:
      • When providing limited legal representation before a court or tribunal, ensure you review and understand your obligations when acting as an advocate. See:
       
      • Be aware of the exception to communications with a represented person and ensure you understand the implications of not informing the other side’s lawyer or paralegal in writing of the limited scope of your retainer. See:
    • Practice Tips
      • If applicable, review the rules of the court or tribunal for the matter to determine whether disclosure of the limited representation is required. 
       
      • Discuss communication issues with your client in advance to manage expectations and avoid misunderstandings. Where there is discretion about the extent of the information to be communicated, seek the client’s instructions, preferably in writing.
       
      • Document all work and communications at every step of the limited scope retainer.
       
      • If relevant and appropriate in the circumstances, remind your client about the possibility of being contacted directly by the opposing party or their representative so that the client or you can proactively manage such situations. 

Additional Supports and Resources

Lawyers and paralegals with further questions about their professional obligations related to limited scope retainers should consider contacting the Law Society’s Practice Management Helpline.

Lawyers and paralegals may also wish to review LawPRO®’s Limited Scope Representation Resources.

Terms or Concepts Explained