Understanding the Scope of Representation
WHAT IS THE “SCOPE OF REPRESENTATION”?
The phrase “scope of representation” refers to the boundaries of the attorney-client relationship. More specifically, the “scope of representation” is the set of matters for which the attorney has agreed to represent the client.
In most cases, an attorney’s representation of a client is limited in scope, and the scope of representation is usually defined in detail in the retainer agreement, which the client and the attorney should sign at the beginning of representation.
HOW IS THE SCOPE OF REPRESENTATION DETERMINED?
Generally, the attorney and the client will consult with one another, either in person or by telephone or email, to discuss the nature and extent of the matters on which the client wants or needs legal assistance. Ideally, the attorney and the client will agree upon the scope of representation before the attorney-client relationship formally begins, and the specific matters will be listed in a retainer agreement, which both the attorney and the client will then sign.
CAN THE SCOPE OF REPRESENTATION CHANGE?
The short answer is “yes”: the attorney and the client can agree to expand or reduce the scope of representation by mutual consent.
However, it is also possible for the scope of representation to change based on a number of other factors, including: (a) operation of law, (b) facts and circumstances that may arise during the course of the attorney/client relationship and handling of the client’s matter, and/or (c) by order of a court or mediator.
If the scope of representation changes, it is important to document the change in writing.
ATTORNEYS HAVE A DUTY TO ADVISE THE CLIENT WHEN MATTERS FALL OUTSIDE THE SCOPE OF REPRESENTATION*
Lawyers have a duty to advise the client, specifically, when:
(a) matters arise (in particular, when the matters may seem related to the current representation) that fall outside the scope of the attorney-client relationship or the work the attorney has agreed to undertake;
(b) the client appears to be overlooking issues that fall outside the scope of representation, but which may prejudice the client”s rights or interests; and
(c) the client appears to believe (or acts as if) the attorney is representing him or her with regard to a matter, when the matter actually falls outside the agreed-upon scope of representation.
Moreover, if the attorney realizes at any point during representation of the client that a reasonably skillful lawyer in his or her position would refer the client to (or recommend that the client consult) a specialist, the attorney has a duty to recommend that the client seek a specialist’s advice or counsel.
The failure to advise the client on any of the foregoing matters, or the failure to advise the client properly in connection therewith, may constitute professional negligence (if the elements of malpractice can be proven).
*Please note that these are not the only circumstances in which a lawyer may have a duty to advise or warn a client, or refer the client to a specialist or other alternative counsel.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
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