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Massachusetts District Court Standing Order 1-11: Limited Assistance Representation and Substitute Counsel

(Applicable to All Divisions)

[Disclaimer]

This Standing Order is promulgated by the Chief Justice of the District Court Department pursuant to the provisions of G.L. c. 211B, § 10 and G.L. c. 218, § 43. This Standing Order addresses two issues concerning the representation of parties by counsel in non-criminal proceedings in the District Court Department of the Trial Court. Part A of the Standing Order addresses the “unbundling” of legal services and implements the Order In Re: Limited Assistance Representation issued by the Massachusetts Supreme Judicial Court, effective May 1, 2009. The Standing Order provides the parameters for limited assistance representation in the District Court Department.

Part B of the Standing Order addresses court proceedings where an attorney substitutes or “covers” for an attorney who has already filed a general appearance on behalf of the litigant but is not present at that particular court proceeding. The Standing Order requires substitute counsel to file an appearance. The Order permits a time limited appearance, thereby acknowledging a common practice in certain civil proceedings in the court while permitting the court to maintain an accurate record of all attorneys who appear before the court. This part of the Order applies exclusively to those litigants who are already represented by counsel and not to the unbundling of legal services, which is addressed by the first part of this Standing Order. The Standing Order does not address the legal or ethical requirements applicable to such representation which are governed by the Code of Professional Conduct, S.J.C. Rule 3:07.

Part A: Limited Assistance Representation

1. Limited Assistance. Limited Assistance Representation (LAR) permits an attorney to assist a self-represented litigant for discrete, limited purposes, subject to a written agreement between the attorney and the client, and allows the attorney to withdraw from the representation after completion of the limited services he or she agrees with the client to provide. The limitation on appearance must be reasonable under all the circumstances, and the attorney must ensure that the client gives his or her informed consent to the attorney’s limited appearance prior to engagement. An attorney and litigant are not permitted to argue on the same legal issue during the period of limited appearance. An attorney may not enter a limited appearance for the sole purpose of making evidentiary objections. An attorney may appear pro bono or on a compensated basis.

2. Applicability. This Standing Order applies to any Limited Assistance Representation of a plaintiff or defendant in any pending or newly-filed non-criminal action in any division of the District Court. An attorney may not file a limited appearance solely for the purpose of obtaining a continuance.

3. Attorney Qualification. As a prerequisite to filing any limited appearance under the terms of this Standing Order, an attorney must complete an information session on LAR approved by the Chief Justice.[Note 1]

4. Notice of Limited Appearance. An attorney making a limited appearance on behalf of a self-represented litigant shall file with the clerk’s office in the court in which the case is filed or being filed a Notice of Limited Appearance in the form approved by the Chief Justice. The Notice of Limited Appearance shall clearly identify the event(s) and/or purpose(s) for which the attorney and the client have agreed that the attorney will assist the client and shall be accompanied by a certification in the form approved by the Chief Justice that the attorney has completed the information session required in paragraph 4 of this order. Any limited appearance filed in connection with a court event shall extend to all issues scheduled or reasonably anticipated to be considered at that event unless the court permits otherwise. The Notice of Limited Appearance must be signed by the attorney and the party.

5. Attendance by party. Any party represented by a lawyer at a court event on a limited representation basis must also attend the court event unless the court permits otherwise.

6. Notice of Withdrawal of Limited Appearance. Upon completion of the representation within the scope of the limited appearance, an attorney shall file with the clerk in the court in which the case is pending a Notice of Withdrawal of Limited Appearance in the form approved by the Chief Justice. The Notice of Withdrawal of Limited Appearance must be signed by the attorney and the party.

7. Court May Not Expand Agreed-Upon Scope of Limited Representation. The scope of the limited representation is defined by the agreement between the attorney and the client and must be consistent with the terms of this order. The court may not require the attorney to represent the client beyond the scope of the agreement described in the Notice of Limited Appearance. The court must permit an attorney to withdraw from the limited representation once the terms of the limited assistance agreement have been met.

8. Revised Notices of Limited Appearance. Provided the client gives his or her informed consent to doing so, an attorney may, at any time before filing a Notice of Withdrawal of Limited Appearance, file a revised Notice of Limited Appearance changing or expanding the original terms of the limited appearance, provided however that if the court event has commenced, court approval of any revised Notice of Appearance must be obtained.

9. Counsel to Serve Copies of Notices On Opposing Party. An attorney who files any Notice of Limited Appearance, revised Notice of Limited Appearance, and/or Notice of Withdrawal shall serve a copy of the same, with a certificate of service, by prepaid first-class mail on each opposing party’s attorney or, if a party is not represented by an attorney, on that party at the party’s address of record.

10. Filings To Identify Existence of LAR Appearance. Any pleading, motion or other document filed by an attorney in the course of his or her limited appearance in a given case shall comply with Mass. R. Civ. P. 11(a) and shall state in bold type on the signature page of the document, “Attorney of [party] for the limited purpose of [court event].”

11. Effect of Filing Documents Beyond Scope Identified in Notice of Limited Appearance. An attorney who files a pleading, motion or other document outside the scope of the limited appearance shall be deemed to have entered a general appearance, unless the attorney files a revised Notice of Limited Appearance with the pleading, motion or other document.

12. Service. Whenever service pursuant to Mass. R. Civ. P. 5 is required or permitted to be made upon a party represented by an attorney making a limited appearance, service for all matters within the scope of the limited appearance shall be made upon both the attorney and the party. Service upon a party shall be at the address listed for the party in the Notice of Limited Appearance. If the party’s address has been impounded by court order or rule, service of process on the party shall be made in accordance with the court order or rule. Service upon an attorney making a limited appearance shall not be required for matters outside the scope of the limited appearance. If more than one Notice of Limited Appearance has been filed in the case, service shall be made upon the client and the attorney at the addresses listed for each in the most recent Notice of Limited Appearance.

13. Court Notice. Whenever a clerk is required to provide notice of a judgment, order or any other event or proceeding where a party is represented by an attorney making a limited appearance, the clerk shall provide notice to the party and to the attorney making a limited appearance unless the attorney has already filed a notice of withdrawal of appearance.

14. “Ghostwriting;” Document Preparation. An attorney may assist a client in preparing a pleading, motion or any other document to be signed and filed in court by the client in any District Court non-criminal case. An attorney assisting with the document preparation need not file a Notice of Limited Appearance with the court nor complete an information session. Such attorney shall insert the notation, “prepared with assistance of counsel” in bold type on any pleading, motion or other document prepared by the attorney. The attorney is not required to sign the pleading, motion or document, and the filing of such pleading, motion or document shall not constitute a limited or general appearance by the attorney in the case.

 

Part B: Substitute Counsel

15. Substitute Counsel. The term “substitute counsel,” shall mean one attorney standing in or “covering” for another attorney who has already filed a general appearance on behalf of a litigant.

16. Notice of Appearance. In cases where a party is already represented by counsel who has filed a general appearance in the case, an attorney who is not current counsel of record shall not appear in court to answer for that party until he or she has filed with the court a written notice of appearance as substitute counsel. Such appearance may be time-limited and may indicate that the attorney is appearing as substitute counsel solely for that day's proceedings. The scope of an appearance as substitute counsel may not otherwise be limited, and substitute counsel must be authorized and prepared to proceed with all matters before the court at that time. Any such notice of appearance as substitute counsel shall be entered on the docket and filed with the case papers.

17. Notice to Substitute Counsel. The clerk need not notify counsel who has filed an appearance as substitute counsel of any orders, future events or proceedings in that case.


[Note 1] The Chief Justice of the District Court has approved the following LAR information sessions for attorney qualification: (1) the written and audio LAR materials compiled by the Expanding Justice Working Group, an adjunct to the Supreme Judicial Court Steering Committee on Unrepresented Litigants, currently available through Senior Partners for Justice at www.spfj.org; and (2) the LAR seminars currently offered by Massachusetts Continuing Legal Education, Inc.

Promulgated January 25, 2011. Amended Order effective nunc pro tunc: January 25, 2012