Federal and state courts, bar association and the agencies that regulate lawyers have begun a push to change the rules of practice to allow lawyers to represent clients in new and innovative ways. The rules have changed to allow for limited representation, alternative fee arrangements and unbundled services so clients have more choice in how they want to engage a lawyer.
The Colorado Rules of Civil Procedure
- Limited Representation in Litigation
C.R.C.P. 121 1-1(5) allows a lawyer to represent a client on a limited basis in litigation. This provision provides assurance that an attorney who makes a limited appearance for a pro se party in a specified case, at the request of and with the consent of the pro se party, can withdraw from the case upon filing a notice of completion of the limited appearance, without leave of court.
- Ghost Writing or Drafting Pleadings
C.R.C.P. 11(b) allows an attorney to prepare pleadings or papers on behalf of a pro se party provided that the document indicates that the attorney prepared the documents. In helping to draft the pleading or paper filed by the pro se party, the attorney must certify that, to the best of the attorney's knowledge, the pleading or paper is (1) well-grounded in fact based upon a reasonable inquiry of the pro se party by the attorney, (2) is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The Colorado Rules of Professional Conduct
- Flat Fees and Unbundled Legal Work
C.R.P.C. 1.5(h) allows lawyers to charge flat fees for legal work and unbundled services (charging for work on only a portion of the case). The agreement must specify the services to be provided and the amount to be paid for those services. The Rule includes a sample Flat Fee Agreement (at the bottom of the page after the comments section).
- Contingency Fees
C.R.P.C. 1.5(h) allows lawyers to represent clients on a contingency fee basis provided the scope of the work and other conditions are met as provided for in the rule.
The Colorado Court of Appeals
- Limited Representation
C.A.R. 5(e) allows for limited scope representation in the Colorado Court of Appeals and Colorado Supreme Court at the request and with the consent of a pro se party. The attorney is required to file an appearance detailing the limited representation. The representation terminates without the necessity of leave of court and upon the attorney filing a notice of completion of limited appearance.
The United States District Court, District of Colorado
- Limited Representation
Local Rule D.C.COLO.LAttyR 2(b)(1) and LAttyR 5(a)-(b) were adopted in 2016 by the District Court for Colorado allowing limited representation on behalf of all civil litigants. The Rules, however, differ from the Colorado Rules on limited representation. The attorney must file a Motion for Leave to Provide Limited Representation and the court must enter an Order granting permission for the representation. At the conclusion of the representation, the attorney must file a Motion to Withdraw and the court will enter an Order allowing the withdrawal. The District court has a comprehensive summary, guide to limited representation and forms available on their website.
- Ghost Writing or Drafting Pleadings
The District Court does not allow an attorney to simply draft a pleading or other paper for submission to the court like the Colorado Rules allow. However, an attorney file a Motion for Leave for Limited Appearance under the limited scope rule for the sole purpose of drafting the pleading or paper and then move to withdraw after the pleading or paper is filed.
The United States Court of Appeals for the Tenth Circuit
The 10th Circuit Court of Appeals does not currently allow limited representation or ghost writing/drafting on behalf of parties before the court.
Successful Business Planning for the Modern Law Practice. Successful Business Planning for the Modern Law Practice, Version 2, is a business planning tool designed to assist lawyers in developing a successful and financially viable practice in the ever-evolving practice of law. The manual includes practical and ethical considerations in developing a business plan and providing representation. Among the tools are sample forms, such as an interactive spreadsheet that calculates the amount of income needed to cover overhead, personnel, and lawyer earnings. There also is a discussion about the value of mentorship and other ways to gain competency, many of which are offered through membership in the Colorado Bar Association.
Purple Cow: Transform Your Business by Being Remarkable by Seth Godin. In Purple Cow, first published in 2003 and revised and expanded in 2009, Godin launched a movement to make truly remarkable products that are worth marketing in the first place. Through stories about companies like Starbucks, JetBlue, Krispy Kreme, and Apple, coupled with his signature provocative style, he inspires readers to rethink what their marketing is really saying about their product. In a world that grows noisier by the day, Godin's challenge has never been more relevant to writers, marketers, advertisers, entrepreneurs, makers, product managers, and anyone else who has something to share with the world.
The 1-Page Marketing Plan: Get New Customers, Make More Money, And Stand Out From The Crowd by Allan Dib. In The 1-Page Marketing Plan, serial entrepreneur and rebellious marketer Allan Dib reveals a marketing implementation breakthrough that makes creating a marketing plan simple and fast. It's literally a single page, divided up into nine squares. With it you'll be able to map out your own sophisticated marketing plan and go from zero to marketing hero.
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The 1-Page Marketing Plan: Get New Customers, Make More Money, And Stand out From The Crowd - In The 1-Page Marketing Plan, serial entrepreneur and rebellious marketer Allan Dib reveals a marketing implementation breakthrough that makes creating a marketing plan simple and fast. It’s literally a single page, divided up into nine squares. With it, you’ll be able to map out your own sophisticated marketing plan and go from zero to marketing hero.
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The Great Recession of 2008 – 2012 and, more recently, the global COVID-19 pandemic, hit lawyers and legal consumers like an earthquake and brought about fundamental changes in how legal services should be delivered and how they should be paid for. The evils of the billable hour have been exposed and alternative fee arrangements have increasingly been used by lawyers and demanded by their clients (listen to a recent episode of the Modern Law Revolution podcast, “The Evils of the Billable Hour”).
Flat or Fixed Fees
Flat or fixed fees break down a matter or litigation case into fixed fees for the work. For transactional work, this could be a fixed price for review or drafting of a contract. It could also break down a matter into defined tasks billed for each discrete task. For litigation, this could mean an overall fee for the entire case or, more commonly, breaking down the litigation into phases with a fee due before the initiation of each phase. For instance, a litigation case can be broken down into pre-suit before the lawsuit is filed (or an answer is filed in a defense case); initial disclosures and paper discovery; trial discovery including depositions of witnesses and experts; mediation and settlement discussions; pre-trial motion practice and preparation; and trial.
Contingency or Hybrid
While some practice areas have used a contingency model for years, a hybrid contingency model is gaining popularity in other practice areas. This model might look like a reduced hourly fee with a percentage contingency upon collection or an increased hourly rate upon the achieve result. For example, $250/hour but if the contingency is achieved the client would pay an hourly rate of $500/hour for all work done on the case.
Unbundled Fees
Colorado state and appellate courts and the U.S. District Court for Colorado allow attorneys to represent clients for only a part of their case. For instance, this could mean representation only for the purpose of responding to a motion for a summary judgment, representation for a final orders hearing in a domestic case or an evidentiary hearing. Attorneys can bill a flat fee for these discrete parts of a case and withdraw upon completion of the event. If further assistance is needed by the clients, the attorney can make a subsequent appearance and fee agreement with the client.