Persels & Associates, LLC v. Capital One Bank, (USA), N.A.

481 S.W.3d 501, 2016 Ky. LEXIS 4, 2016 WL 670180
CourtKentucky Supreme Court
DecidedFebruary 18, 2016
Docket2014-SC-000131-DG
StatusPublished
Cited by1 cases

This text of 481 S.W.3d 501 (Persels & Associates, LLC v. Capital One Bank, (USA), N.A.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Persels & Associates, LLC v. Capital One Bank, (USA), N.A., 481 S.W.3d 501, 2016 Ky. LEXIS 4, 2016 WL 670180 (Ky. 2016).

Opinion

OPINION OF THE COURT BY

JUSTICE CUNNINGHAM

“One of the basic principles, one of the glories, of the American system of justice is that the cotirthouse door is open to everyone—the humblest 'citizen, the indigent, the convicted felon, the illegal alien.” N.A.A.C.P. v. Meese, 615 F.Supp. 200, 205-06 (D.D.C.1985).

We granted discretionary review óf this case to address/the prevalence of limited-representation agreements. These agreements are sometimes referred to as the “unbundling” of legal services. We hold that such agreements are' permissible so long as they are reasonable under the circumstances and otherwise comport with our rules of practice and procedure, and the following analysis.

Background

Sarah Jackson and David Thomas, of Owensboro, individually retained Appellants Persels & Associates, LLC (“Per-sels”)' to defend them in their debt collection cases that were pending before the Daviess Circuit Court. Persels is a national law firm organized in Maryland and engaged primarily in unsecured debt collection cases such as credit card debt. Here, Persels attempted to -negotiate with the credit card companies on behalf of its clients. To assist in negotiations, Persels retained Kentucky attorneys K. David Bradley of Salt Lick, Kentucky, and Robert Gillispie of Leesburg, Virginia, to provide limited representation. Mr. Bradley was assigned to “assist” Sarah Jackson; and Mr. Gillispie was assigned to “assist” David Thomas.

The terms of Jackson’s and Thomas’s limited-representation agreements with Persels were confined to drafting and consultation services. The agreements specifically provided that neither Kentucky lawyer was required to sign pleadings, entel-an appearance, or .attend court proceedings. Therefore, it appears that the defendants were nominally pro se.- They either signed the documents that were prepared for them, or were at least instructed to do so by counsel. In-2011, however, the Da-viess Circuit Court ordered Attorneys Bradley and Gillispie to appear and show cause as to why they should not be held in contempt for their failure to enter their appearances and sign documents filed with the court. The trial court consolidated the two cases and permitted Persels to intervene as a third party respondent.

Thereafter, Persels pursued a writ of prohibition arguing that the trial court was acting outside its jurisdiction by essentially creating a new rule requiring attorneys who assist .pro se litigants to sign pleadings and enter appearances. Following the Court of Appeals’ denial of the writ, the trial court held a hearing on July 3, 2012, at which Persels, Bradley, and Gillis-pie presented evidence. The trial court determined that Persels, Bradley, and Gil-lispie had violated Kentucky Rules of Civil Procedure (“CR”) 11 and fined each $1.00. The fine was probated conditioned upon no further violations of CR 11.

The Court of Appeals affirmed the trial court’s judgment. We granted discretionary review. While Capital One Bank (USA), N.A. and Citibank, South Dakota, [505]*505N.A. are the named Appellees, no response was, filed on their behalf. The. original party defendants, Jackson and Thomas, and the respondent banks have no interest in this appeal. The underlying case has been resolved. Only the sanctions issue remains.

Having reviewed the record and the law, we reverse the Court of Appeals’ decision and remand this case to the trial court in order to determine whether the limited-representation agreements at issue were reasonable under the circumstances.

Analysis

Appellate -review of a trial court’s actions related to CR 11 requires a multi-standard approach. .We apply a clearly erroneous standard to the trial court’s findings in support of sanctions, a de novo review of the legal conclusion that a violation occurred, and an abuse of discretion standard on the type and/or amount of sanctions imposed. Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417, 421 (Ky.App.1988).

Factual Findings

The trial court’s seventeen page order contains very thorough and well-supported findings. It is also undisputed that neither Attorney Bradley nor Attorney Gillispie signed any documents that were filed with the court. .The court also observed that the tendered materials carried the following unsigned notation in small .typeset at the end of the documents:

This document was prepared by, or with the assistance of, an attorney licensed in Kentucky and employed by Persels & Associates, LLC/Persels & Associates, LLP (CA, MI)/Persels & Associates, PLLC (NC)—800-498-6761.

The trial court made accurate findings that were not clearly erroneous. Therefore, the primary issue here involves the trial court’s legal determination that a CR 11 violation occurred.

Legal Findings and Conclusions

Kentucky Supreme Court Rule (“SCR”) 3.130 (Rule 1.2) governs the scope of representation and allocation of authority between client and lawyer. It provides in part: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client . gives informed consent.” SCR 3.130(1.2)(c). Comment 6 further defines the nature and scope of limited representation agreements and provides in part:

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client, thinks are too costly or that the lawyer regards as repugnant or imprudent.

Comment . 7 provides that “[ajlthough this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances.”,

In 1991, the Kentucky Bar Association issued an advisory opinion interpreting Rule 1.2, wherein it determined that a .lawyer may limit his or her representation of an. indigent pro se, defendant to the preparation of initial pleadings. The KBA specifically opined as follows:

Some opinions suggest that it is sufficient that the pleading bear the designation “Prepared by Counsel.” However, the better and majority view appears to be that counsel’s name should appear somewhere on the pleading, although counsel is limiting his or her assistance to the preparation of the pleading.

[506]*506KBA E-343 (January 1991).

That advisory also suggested the following requirements: (1) the counsel providing such limited-representation may not deceptively engage in a more extensive role; (2) the opposing counsel or opposing party may not require counsel to enter an appearance for all purposes; and (3) counsel is required to adequately investigate the facts so that the pleading can be filed in good faith. When presented with a similar issue, the American Bar Association standing committed on ethics determined:

We reject the contention that a lawyer who does not appear in the action circumvents court rules requiring the assumption of responsibility for their pleadings.

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Related

Chanda S. Carr
E.D. Kentucky, 2020

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Bluebook (online)
481 S.W.3d 501, 2016 Ky. LEXIS 4, 2016 WL 670180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/persels-associates-llc-v-capital-one-bank-usa-na-ky-2016.