IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. AF 07-0157 

IN RE CHANGES TO THE MONTANA RULES 

OF CIVIL PROCEDURE to encourage 

limited scope representation (LSR) in Montana. 

ORDER 

1W4R 15 2017 

CLERK 

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 THE 

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COURT 

In September of 2010, the Montana Supreme Court Equal Justice Task Force, the 

Montana Supreme Court Commission on Self-Represented Litigants, and the State Bar 

Access to Justice Committee petitioned the Court to adopt rule changes in order to encourage 

limited scope representation (LSR) by Montana attorneys, as one means of addressing the 

unmet legal needs of low- to moderate-income Montanans. For that purpose, changes were 

proposed to the Montana Rules of Civil Procedure and the Montana Rules of Professional 

Conduct. 

We invited and received written public comment on the proposed rule changes. At the 

end of the comment period, we also heard public comment at several public meetings. At our 

public meeting on March 1, 2011, we voted to adopt most, but not all, of the changes 

proposed to the Montana Rules of Professional Conduct and the Montana Rules of Civil 

Procedure. 

IT IS NOW ORDERED that the following language is added to the Montana 

Rules of Civil Procedure, as Rule 4.2 and Rule 4.3: 

Rule 4.2 Limited Representation Permitted -- Process. 

(a) In accordance with Rule 1.2(c) of the Montana Rules of Professional 

Conduct, an attorney may undertake to provide limited representation to a 

person involved in a court proceeding. 

(b) Providing limited representation of a person under these rules shall not 

constitute an entry of appearance by the attorney for purposes of Rule 5(b) and 

does not authorize or require the service or delively of pleadings, papers, or 

other documents upon the attorney under Rule 5(b). 

(c) Representation of the person by the attorney at any proceeding before a 

judge or other judicial officer on behalf of the person constitutes an entry of 

appearance, except to the extent that a limited notice of appearance as provided 

March 15 2011
for under Rule 4.3 is filed and served prior to or simultaneous with the actual 

appearance. Service on an attorney who has made a limited appearance for a 

party shall be valid only in connection with the specific proceedings for which 

the attorney appeared, including any hearing or trial at which the attorney 

appeared and any subsequent motions or presentation of orders. 

(d) An attorney's violation of this Rule may subject the attorney to sanctions 

provided in Rule 11. 

Rule 4.3. Notice of Limited Appearance and Withdrawal as Attorney. 

(a) Notice of limited appearance. If specifically so stated in a notice of 

limited appearance filed and served prior to or simultaneous with the 

proceeding, an attorney's role may be limited to one or more individual 

proceedings in the action. 

(b) At the conclusion of such proceedings the attorney's role terminates 

without the necessity of leave of court, upon the attorney filing notice of 

completion of limited appearance. 

IT IS FURTHER ORDERED that Rule 11 of the Montana Rules of Civil Procedure is 

amended by the addition of subsection (b) shown below: 

Rule 11. Signing of Pleadings, Motions, and other Papers -- Sanctions 

) [existing rule] 

(b) An attorney may help to draft a pleading, motion, or document filed by the 

otherwise self-represented person, and the attorney need not sign that pleading 

motion, or document. The attorney in providing such drafting assistance may 

rely on the otherwise self-represented person's representation of facts, unless 

the attorney has reason to believe that such representations are false or 

materially insufficient, in which instance the attorney shall make an 

independent reasonable inquiry into the facts. 

The above changes to the Montana Rules of Civil Procedure shall be effective on 

October 1, 2011. 

This Order shall be published on the Montana Supreme Court website. The Clerk is 

directed to provide copies of this Order to the Montana State Law Library, the State Bar of 

Montana, Court Services Director Beth McLaughlin, Thomson-Reuters, Chair of the State 

Bar Ethics Committee Michael Alterowitz, and the Montana Legislative Services Division. 
The Clerk is further directed to provide copies of this Order to the Chairs of the Montana 

Supreme Court Equal Justice Task Force, the Montana Supreme Court Commission on SelfRepresented Litigants, the State Bar of Montana Access to Justice Committee, and the 

Advisory Commission on Rules of Civil and Appellate Procedure. 

DATED this day of March, 2011. 

Chief Justice 
Justice Beth Baker, concurring. 

I concur with the Court's Order adopting rules to encourage limited scope 

representation (LSR) by Montana attorneys. I write separately to address the concerns 

raised by some of the comments from members of the Bar and the Opinion of the State 

Bar Ethics Committee, and reflected in the Dissent. 

Nothing in the amendment to M. R. Civ. P. 11 changes the fact that all lawyers are 

bound by and subject to the Rules of Professional Conduct. By assisting an individual in 

the preparation of legal documents, a lawyer is not given carte blanche to mislead the 

courts or other parties, counsel a client to file invalid pleadings, advance claims with little 

or no relevance or merit, or practice in areas in which the lawyer has insufficient 

competence "reasonably necessary for the representation" as required by M. R. Prof. C. 

1.1. And a self-represented party remains bound by Rule 11 and subject to sanctions if 

the rule is violated. 

Limited scope" does not mean limited competence," "limited professionalism," 

or "limited ethics." It does, however, mean that more Montanans may have the 

opportunity to have some meaningful advice and input as they attempt to protect their 

legal rights in the courts of this State. According to the most recent annual report of the 

Montana Office of Disciplinary Counsel, only about one in one hundred Montana 

lawyers was subject to any form of discipline last year, consistent with the past several 

years' data. More than half of all complaints against lawyers are filed by their own 

clients, who will retain access to that remedy whether or not there is an agreement for 

limited scope representation and whether or not their attorney signs the document filed in 

court. Given the high standards of practice generally followed by Montana attorneys, I 

do not share the fear that encouraging lawyers to help people with their legal documents 

will generate a sudden onslaught of substandard legal work. 

In light of this relatively slight risk, the amendments to Rule 11 offer a workable 

standard. The proposal offered by the Dissent, on the other hand, is unworkable as it 

does not provide a bright line standard. For example, if an attorney drafts one or two 

rd 
paragraphs in a document, or reviews and edits a client's draft, or prepares language that 

the client thereafter edits and inserts into a document, has the attorney participated in 

"drafting" the document within the meaning of the rule? Without a clear standard, the 

goal of encouraging attorneys to provide a needed service will be chilled by having a rule 

that is difficult to apply in practice and risks defeating the purpose of limited 

representation. 

In my view, the courts, court staff, opposing parties and their lawyers will benefit 

from having better documents filed by self-represented litigants, and from having parties 

who are better prepared when they appear in court on their own behalf—as they will do 

with or without these rule changes and as is their right. On balance, even limited 

assistance provided by lawyers to self-represented litigants will help the system work 

more effectively for all participants. Although the Ethics Committee expresses concern 

that the rule will promote a two-tiered system where those unable to afford a lawyer are 

given a qualitatively lesser form of legal representation, the Ethics Opinion fails to 

appreciate that the real choice is between limited representation and no representation at 

all. 

The Ethics Opinion also fails to consider the ethical obligation of all lawyers to 

provide pro bono publico legal services under Rule 6.1. While the Ethics Committee 

believes that the existing rules accommodate the goal of meeting unmet legal needs, the 

fact is that, despite decades of work by members of the legal community to increase 

availability of legal resources and services, a significant portion of our citizens' legal 

needs still go unmet under the current rules. The amendments adopted by the Court 

today will encourage a new vision for innovation and cooperation that will give more 

lawyers a way to meet their ethical obligations and more Montanans the opportunity to 

have meaningful access to their courts. 

////Z ~~_ 

J/istice 

5 
Chief Justice Mike McGrath and Justice Brian Morris join in the concurring Opinion of 

Justice Beth Baker. 
Justice James C. Nelson, concurring and dissenting. 

I concur with the Court's Order except as to the amendment to M. R. Civ. P. 11. 

As to that amendment, respectfully, I cannot agree. The Court's adoption of limited 

scope representation (LSR) rules is a legitimate way to allow—and encourage—

practicing attorneys to provide more and better legal services to the ever-growing 

numbers of those who cannot afford professional legal representation. I support that 

concept. 

However, public comment, the Montana State Bar Ethics Committee's Opinion 

No. 101216, and State Bar President Joe Sullivan's President's Message in the November 

2010 issue of the Montana Lawyer (Vol. 36, No. 2), have persuaded me that amending 

M. R. Civ. P. 11 in the manner we have is a mistake. The amendment which we adopt to 

M. R. Civ. P. 11 today allows attorneys to draft anonymously, or to "ghostwrite," 

pleadings, motions and documents for self-represented litigants to sign and then use as 

the litigant's own work product. 

The State Bar and some lawyers in the practicing Bar have raised bona fide 

concerns that ghostwriting may, among other things, protect attorneys who do 

substandard work by abrogating accountability; encourage "recreational" and otherwise 

invalid filings; legitimize the trend toward a reduced and qualitatively lesser form of legal 

representation; mislead the courts and other parties; encourage lawyers to practice in 

areas of the law for which they have little or no experience; require the opposing party to 

respond to or defend against arguments and claims that, in the context of the entire case, 

have little or no relevance or merit; facilitate out-of-state attorneys to practice law in 

Montana without being licensed to do so; facilitate disbarred or suspended lawyers to 

practice law; and encourage lawyers to establish an LSR "practice." Finally, 

self-represented litigants are typically held to a lesser standard than parties represented by 

counsel. A self-represented litigant with a ghostwritten motion, brief or complaint gets 

the best of both worlds—an attorney-prepared document and judicial leeway. While LSR 

may benefit those in need of professional legal representation, allowing attorneys to 

7 
ghostwrite presents serious risks to the profession, to the ethical practice of law, and to 

our notions of transparency and basic fairness. 

Accordingly, to mitigate these concerns, I would require, within the amended 

language to M. R. Civ. P. 11, that when an attorney drafts a pleading, motion or 

document for the signature of a self-represented litigant, that the attorney be required to 

state on the writing that he or she has drafted it pursuant to the LSR rules and to provide 

his or her name, business address, business phone number and State Bar license number. 

Finally, I appreciate and understand Justice Baker's zeal for LSR, and I am 

hopeful that it succeeds to her high expectations. I do not believe (and did not say) that 

LSR will generate a "sudden onslaught of substandard legal work." I am concerned, 

however, that the way LSR is being "marketed" to the Bar may well encourage those 

attorneys who have few clients, little or no experience, and little or no mentoring to 

engage in an "LSR practice" as a means of building a client base and as a means of 

gaining experience anonymously. 

Until recently, I was unaware of this Court's Commission on Self-Represented 

Litigants and Pro Bono Program sponsorship of a CLE on October 15, 2010, in Billings. 

A "nationally recognized expert" was engaged to give the workshop. The title of the 

CLE was "Got Clients? How to Grow Your Law Practice Using Limited Scope 

Representation." The flyer promoted the CLE as a means to "expand[] your law practice, 

market[] your practice and increase[] your client base by tapping into a new pool of 'pay 

as you go' clients . . . ." Why attend? Again, the flyer, among other things, promotes 

LSR as a "how to" manual to "help expand your client base during these tough economic 

times" as well as to "make unrepresented clients your clients" and to teach "when and 

when not to do LSR safely and profitably." 

My understanding of the purpose of unbundling legal services is to encourage 

competent and experienced attorneys—including those in large firms—to provide pro 

bono services on a piecemeal basis (i.e., without having to take on responsibility for a 

whole case) to those who cannot afford to pay for the legal services rendered. These are 

laudable goals, intended for the benefit of clients who need assistance. I did not envision 
LSR as being implemented or marketed for the benefit of lawyers. That LSR is now 

being promoted under the name of this Court as a means to expand one's apparently 

flagging law practice by tapping into a pool of "pay as you go" clients is a disquieting 

spin on the program. 

The marketing of LSR as a new fee-generating vehicle for lawyers underscores my 

concern that we may be losing sight of whose interests are primary. To ensure that the 

client receives competent service from attorneys—which is our common goal—we 

should require that those who perform the work are willing to stand behind it. This 

should be neither difficult nor chilling for the competent lawyer to do. All I am 

suggesting is that attorneys who provide these services be held accountable for their work 

product by stating on the document that they prepared it. If we need a "bright line" rule 

specifying how the requirement be fulfilled, I am fully confident that this Court could 

draft such a rule. 

I concur with the Court's Order except as to the amendment to M. R. Civ. P. 11. 

Justice 

Justice Patricia 0. Cotter joins the Concurrence and Disseof Justice James C. Nelson. 

Justice