As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.
Late last year, the Court released a final version of the Uniform Trial Court Rule on Limited Assistance Representation (LAR) that incorporated feedback from our Business and Commercial Litigation Section (BCLS) Steering Committee. The Rule will become effective on February 1, 2019, and can be read in full here.
Early last year, Chief Justice of the Trial Court Paula M. Carey solicited comments on the proposed Uniform Trial Court Rule on LAR. An LAR Rules Committee was formed in 2017 and charged with drafting the proposal, intended to provide consistency across departments, improving the service for both lawyers wishing to provide LAR and litigants wishing to secure LAR services. When creating the proposal, the Committee considered the Supreme Judicial Court (SJC) LAR Order as well as existing Orders from other Trial Court Departments.
The BCLS Steering Committee comments began by noting that committee members believed “the Trial Court’s embrace of limited assistance representation is an important development in the delivery of affordable legal services in non-criminal cases,” noting that the Section had previously reviewed and offered favorable comments on the Superior Court’s LAR order the previous year. The comments commended the Court for continuing those efforts and highlighted a few points in the proposed rule that departed from the existing rules in ways potentially worth clarifying.
For example, the comments expressed concern about the requirement that the attorney “ensure that a prospective client fully understands the agreement and that the client gives informed consent.” Members were not sure how counsel could “ensure” that a client “fully understand” the agreement and suggested instead it a more objective test, like reviewing the document together. The final comment removes the “ensure” language and instead reads: “The attorney shall review the written agreement with the client before it is signed and obtain the client’s informed consent.”
Members additionally raised concern about the language addressing instances when a lawyer may have exceeded the scope of the assistance described in the Notice of Limited Appearance. The proposed rule provides: “[I]f an LAR attorney files a pleading, motion or other document and/or argues a legal issue outside the scope of a filed Notice of Limited Appearance, then the court may consider the LAR attorney to have entered a general appearance.” Members were worried “that counsel would feel constrained not to raise relevant, helpful, but unforeseen issues—which they had not identified in their Notice of Limited Appearance—out of a concern that they could then be deemed to have appeared generally.” The new rule clarifies this provision, easing the concern expressed in the comments, and now notes that if an Attorney files or argues something outside the scope of the filed Notice of Limited Appearance, the court may require a new Notice to be filed, and if the attorney fails to do so after that, the court may consider the attorney to have entered a general appearance.
Next, the comments raised two minor clarifying suggestions related to paragraph 5: the mentioned Notice of Withdrawal should be “court-approved,” and that there should be a reference to “service. The final rule incorporates both of these suggestions, now reading: “[u]pon completion of all events or issues for which an LAR attorney has filed a Notice of Limited Appearance, s/he shall serve and a Notice of Withdrawal of Limited Appearance on a form approved by the Chief Justice of the Trial Court.”
Finally, members addressed the “non-punitive remedy” outlined in Paragraph 5, finding the new proposal a bit draconian compared to the previous standing orders, and noting that members thought that the bar to an award of fees or costs should be set higher than in the proposed rule. The proposal read that “if any other party incurs costs or is otherwise prejudiced by the attorney’s failure to file a Notice of Withdrawal, then upon motion the court may order a non-punitive remedy, including compensation for fees and costs reasonably incurred.” The final rule remains much the same but adds that “…upon motion the court for good cause may order a non-punitive remedy…”(emphasis added).
As always, we are very appreciative of the hard work and expertise offered by the Committee Members, especially committee co-chairs Stephen Riden of Beck, Reed, Riden and Daniel Tighe of Donnelly, Conroy & Gelhaar, who presented the comments to our BBA Executive Committee before their submission. We’re also thrilled that the court adopted many of the suggestions.
To read more about the impact of past BBA Comments check out:
Legislative and Public Policy Manager
Boston Bar Association