Amendments to Illinois Supreme Court Rules
Published in Chicago Lawyer Magazine, September 2013
By Dan Stefani
Effective July 1, 2013, Illinois Supreme Court Rules 11, 13 and 137 have been amended. The amendments to these rules relate to limited scope representation by attorneys. Under Rule 1.2 of the Rules of Professional Responsibility, attorneys in Illinois have been able to engage in limited scope representation since the 2010 Amendments to the Rule. The recent amendments to the Supreme Court Rules help to clarify the procedures by which an attorney can properly represent a client on only a portion of their legal matter. Over twenty other states permit limited scope representation in civil cases by attorneys. The purpose of such representation is to lessen the legal costs in civil cases for clients of limited means.
The new amendments enable an attorney to represent a client on a limited part of their lawsuit and then withdraw from the case. Obviously, most cases require full legal representation. However, there are some areas, such as small claims court, housing and especially family law that have more compartmentalized issues which could lend itself to a limited scope representation.
Under the amended Rule 11, a limited scope attorney is to be served with all documents during the pendency of the limited scope representation.
Under amended Rule 13, an attorney must have a written agreement with the client about the limited scope representation and must file a Notice of Limited Scope Representation which identifies each aspect of the pending proceeding to which the limited scope appearance pertains. The limited scope appearance may be filed more than once in a case (i.e. if you are subsequently retained for an additional limited scope representation for another issue in the case, you will need to file another limited scope appearance). An attorney can withdraw from the pending proceeding using the typical procedures for representation in civil litigation. Alternatively, the new Rule 13 allows for (1) withdrawal upon oral motion if the client is present at the hearing upon completion of the hearing; or (2) upon written motion which will automatically be granted after twenty-one (21) days if no objection is filed. The key issue here will be notice. Limited scope withdrawal requires service of notice to the usual suspects, namely, the client, all other counsel of record including any other limited scope attorneys with appearances on file. Additionally, the amended Rule also requires that notice be served to the Judge presiding over the case. The Court must grant the motion unless the party objects on the grounds that the attorney has not completed the limited scope of their representation.
Under the new amended Rule 137, an attorney may assist a pro se litigant with the preparation of a pleading or motion without filing a limited scope appearance. The attorney need not sign the pleading and may accept the facts provided by the litigant as true without further investigation, unless the attorney knows that such representations are false.
With the new requirement of a written agreement under Rule 13, there is little guidance from the ARDC and/or the Illinois Supreme Court as to the required terms of such an agreement. At the minimum, attorneys should be very clear about the scope of the representation. This is especially important given the holding of a case in California. Nichols v. Keller, 15 Cal.App.4th 1672 (1993). In Nichols, an attorney and client entered into a limited scope engagement agreement for the attorney to handle only a worker’s compensation claim. The agreement did not mention a potential for the client to file a third-party tort claim. Upon the client later learning of the existence of such a claim, and learning that it was time barred due to the statute of limitations, the client sued the attorney for negligence and won at the appellate level. The court held that “not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client’s objectives. The attorney need not advise and caution of every possible alternative, but only of those that may result in adverse consequences if not considered”. The court further explained that “a trained attorney is more qualified to recognize and analyze legal needs than a lay client . . .” This case would appear to create an obligation to advise the client extensively of nearly all of their legal needs, potential causes of action, potential motions and the impact of same, so practitioners should be extra careful in defining the scope of their representation.
Effective January 1, 2014, there are some minor amendments to Illinois Supreme Court Rule 138. Personal identity information that shall NOT be included in any court filings will now include birthdates and names of individuals known to be minors. In lieu of that information, the new rule provides for the disclosure in the court filings of only the year of the individual’s date of birth and the minor’s initials. As with the prior rule, in the event personal identity information is required in its entirety, the litigant shall file the redacted document and additionally provide a “Notice of Personal Identity Information Within Court Filing”. The Notice shall either include a listing of the personal identity information or have attached an unredacted copy of the document, if necessary. Said Notice, as well as any attachments, shall be filed under seal and remain confidential subject to certain exceptions where certain people or entities have automatic access.