You may have heard of limited scope retainers. This is a trendy idea at the moment to provide legal resources to those who have limited financial resources but who make too much money to qualify for legal aid. This is different from a traditional full representation model, in which the client hires the lawyer to fully represent them with respect to their legal matter. This means that the lawyer will take all steps necessary to complete the client’s legal matter including meeting with the client, providing the client with legal advice, writing letters to the client and the opposing party, preparing Court documents, and representing the client in Court. In a limited scope retainer, the client chooses which of the items from the “menu” they wish to hire the lawyer to provide. The lawyer’s services are then limited to those items on the “menu”. We offer limited scope services on a case-by-case basis where the client requests them and we feel that they may be appropriate. However, we have observed three major problems with limited scope services.
1. The services provided by the lawyer are not as effective as they might otherwise be because the lawyer is operating in a void
Some of the more popular limited scope services that we are requested to provide are either preparing Court materials for the client to then represent themselves in Court, or, using the client’s pre-prepared Court materials and presenting their case in Court. In neither of these scenarios are we as effective as when we prepare our client’s materials and present those materials in Court.
If we prepare materials for you we can be confident in the quality of our work given that we know the law in the area related to your court matter and we know how to present written materials to be persuasive to the Court. However, it is unlikely that our style of writing and materials will be a perfect match for your style of presentation. If we provide you with materials that contain high-level legal arguments with which you are not comfortable, you will not be able explain them accurately and convincingly to the Judge. We sometimes encounter limited scope clients who feel they are very effective at communicating their case and their position to the Court, but we often find that they simply lack the legal training to accurately identify those lines of argument and facts which are most supportive of their case.
Where you provide us with materials that you have prepared on your own and request that we argue your case in Court, we are limited in our argument to the facts contained in your materials. This is often hugely detrimental to limited scope clients. We can apply our legal knowledge and our polished presentation skills to your materials, but we ultimately cannot overcome factual deficiencies in the materials. Only matters that are in your materials can be argued to the Judge. It is often the case that when we are hired at the last minute to present these types of cases in Court, we immediately identify that we would prefer to frame the issues differently, add a different issue, and would have preferred different evidence to be before the Court in order to support your position. By bringing us in at the last minute, we often cannot do anything to change your materials and are stuck arguing the case only in the way that you framed it. This means you are losing one of the benefits of having a lawyer which is our ability to apply our skill and experience to frame your case in the way it is most likely to be successful.
2. Client do not request or choose the services that might be most helpful to them
Clients seeking a limited scope retainer arrangement often come in asking for specific services. For example, a client will often ask us to simply present their case to the Court after they have already filed the materials. More times than not, we advise the client to have us re-prepare the materials. This results in a duplication of effort and of course higher legal fees for the client. We have often seen cases where if we had not taken this step for the client, they would have lost their application because the materials presented did not prove their case.
Sometimes, limited scope clients do not take our strong advice to change their materials or hire us to perform different services than those they have requested. We have rarely seen this work in the client’s favour in the long run. As lawyers, we have expertise and experience in all areas of a family law file. This is not strictly limited to knowing the law in this area, but also how to present a case and how to best negotiate for a successful outcome.
Another type of example that comes to mind is a client who hires us for a significant fee to argue their case at a Special Chambers Application. Because we are on a limited scope retainer and can only assist the client in preparing and presenting that Special Chambers Application, the client does not realize that they might have been able to settle their case through negotiation or mediation or some other mechanism which would ultimately be more beneficial to the client. Those other mechanisms might also have considerably lower legal fees attached than the limited scope retainer legal fee to argue a Special Chambers Application.
3. Limited scope services are often not cheaper than full representation
Our fees for limited scope retainer services are significantly higher than the fees we charge our regular clients for those same services. The reason for that is because the basis of all fees in our office is to fairly compensate the lawyers for the work done for the client. A full service client who has a court appearance come up on their file requires a limited amount of additional work by the lawyers because we are already familiar with the client and their file. We are already familiar with most of the evidence that will be presented in the court application and the background facts. The client has already had an initial meeting with us, and usually several subsequent meetings with us. We understand the client’s motivations and objectives.
In comparison, when an unknown client comes to us and asks us to represent them on a limited scope basis for a single court application, we must put in all of the additional work of having a lengthy meeting with the client to understand their perspective, their background and motivation, and the entire context of the application within the greater context of the court file. Often, we must read numerous previous court documents in order to understand the entire context. In addition to this, we must either prepare new court documents or review all of the documents that have already been prepared and filed by the client and the opposing side. When it comes to actually arguing the court application, we may have to briefly stand the matter down in court in order to seek instructions from the client as we are not as familiar with the client and are unable to know what their instructions might be. This is significantly more work than presenting a court application for a full service client. The fees charged for limited scope work reflect this increased amount of work.
We have also seen self-represented litigants who manage a large part of their case on their own prior to hiring a lawyer at the 11th hour to represent them in their trial go to trial unnecessarily. Legal fees to present a trial are not insignificant even on a limited scope retainer. Many of these clients would have been further ahead to seek legal assistance from the beginning and resolve their matter outside of the trial context.
We know that legal fees are expensive. We also know that people want and value good legal advice but may not be in a position to pay for full representation. If you are considering obtaining legal advice on a limited scope basis, decrease your risk by talking to a lawyer as early on in your matter as possible so you have the ability to weigh your options.