10 Trial Lawyer • Fall 2023 Legal Questions Continued from p 9 ation as a scrivener, the client is looking for advice and guidance. The client did not ask me to do that It is important for attorneys not to assume a limited role simply because a client asks basic questions or for simple tasks to be performed. The recent trend in asserting a “limited scope” of representation as a defense to legal malpractice claims based on nothing more than the fact that a client only asked a couple of questions about a particular topic ignores the plain language of ORPC 1.2(b) and ORPC 1.0(g) because a client needs to know the material risks of any limitation before it is considered “reasonable” under the ORPC. “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to a proposed course of conduct.” ORPC 1.0(g). Thus, answering several “discrete” legal questions for a client opens the door to an attorney-client relationship on that entire topic, which is not limited unless and until the client understands the risks related to the limitations and what else can be done. In other words, the attorney cannot simply answer the questions presented, knowing that there are dozens of other issues that need to be analyzed to fully advise the client without explaining the inadequate nature of the advice and the risks of reliance. So, in the above scenario, if the attorney wished to limit the scope of the representation to only sending a letter with the client’s stated grievances without additional research, document review (i.e., the will), and explanation of overall risks, it was imperative that the attorney explain all of the risks of such limitations (including lack of knowledge as to whether there was a no contest clause) and “reasonably available alternatives.” Commonly overlooked in the limited scope analysis, however, is that any limitations must also be reasonable. This means that just because the attorney and client agree to a limitation does not mean that the attorney is in compliance with the ORPC or meeting the applicable standard of care if a malpractice action arises. The comments to ABA Model RPC 1.2 provide some direction pertaining to when limitations are not reasonable. Comment [7] states in pertinent part: If, for example, a client’s objective is limited to securing information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Thus, non-compliance with the ORPC may provide context for the standard of care in a legal malpractice action. For example, if an attorney argues that they were not negligent because their representation was limited, evidence of how an attorney limits the scope of representation, and what limitations may be reasonable under the circumstances is appropriate. See, e.g., Kidney Ass’n of Oregon v. Ferguson, 315 Or 135, 142 n.12 (1992) (summarizing the common rule across the country “that a lawyer’s violation of disciplinary rules does not, in itself, establish the lawyer’s negligence” but the Rules of Professional Conduct
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