TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 9, 2015
RE: Rule 11, N.D.R.Civ.P., Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions; Rule 11.2, N.D.R.Ct., Withdrawal of Attorneys
At the January meeting, the committee considered a request from the Minority Justice Implementation Committee proposing amendments to Rule 11 and Rule 11.2 regarding limited scope representation. The committee decided to delay consideration of the minority committee's proposals so that more information about the rationale behind them could be obtained.
The proposed amendments to Rule 11 and Rule 11.2 are attached. Also attached is an excerpt from the minority's committee's minutes that explains the decision to request the amendments. A fuller explanation of the minority committee's rationale behind seeking expanded use of limited representation can be found in the attached excerpt from the committee's annual report. The Nebraska conduct rule that the minority committee used as a model for its proposed amendments, along with its commentary on the rule, is also attached.
In general, the minority committee believes that expanding the use of limited representation would be helpful to litigants and that the proposed rule changes could help accomplish this. As the committee explains in its annual report, "a self-represented citizen might seek a limited-scope arrangement in which an attorney performs research, drafts a complaint, or makes an appearance for the client, without providing additional services. This arrangement allows self-represented litigants to take advantage of at least some affordable attorney services and creates flexibility for attorneys, who may offer a variety of services at designated prices."
One specific question posed by the committee at the January meeting asked about the difference between the terms "limited appearance" and "limited representation" used in both the Rule 11 and Rule 11.2 proposals. The Nebraska rule contemplates a the possibility of a wide range of services being provided under a "limited representation" from answering questions about the law to actually appearing on behalf of the litigant in court for a specific purpose. The minority committee intended used the term "limited appearance" to reference instances where the attorney actually represents the litigant before the court, as opposed to merely providing advice or assistance in drafting papers. The committee may wish to discuss whether this distinction between terms is clear from the language of the proposed amendments and whether possibly only one of these terms should be used in the rules.