Can I offer it?

  1. Does my state allow for the practice of unbundled legal services?
  2. Should I worry about the ethics of providing limited scope representation?
  3. What do the ABA Model Rules mean by “reasonable under the circumstances”?
  4. What do the ABA Model Rules mean by “informed consent”?
  5. I am concerned that I will have more malpractice exposure. Will my risk for malpractice increase?
  6. Family law cases require adjudication. How do I respond to those who maintain that such matters cannot be handled in a “piecemeal” fashion?

Does my state allow for the practice of unbundled legal services?

Most states provide for some form of limited scope representation. However, the rules vary.

Resources:

ABA Unbundling Resource Center, Court Rules.

  • This American Bar Association compilation of state court rules pertaining to limited scope representation details relevant professional conduct, ethics, and civil procedure rules across the country.

National Center for State Courts, Self-Representation State Links: Unbundling Rules.

  • This National Center for State Courts resource page contains links to state unbundling rules.

ABA Standing Comm. on the Delivery of Legal Serv., An Analysis of Rules that Enable Lawyers to Serve Self-Represented Litigants (2014).

  • This ABA Standing Committee on the Delivery of Legal Services White Paper provides a detailed look at the ways in which states around the country are drafting or amending rules of conduct and procedure that allow attorneys to provide limited scope representation.

Should I worry about the ethics of providing limited scope representation?

An attorney must follow all ethical rules and standards of professional responsibility whether providing full or partial representation. Earlier concerns arising from the provision of representation for only a portion of a case have for the most part been resolved. According to Rule 1.2 of the ABA Rules of Professional Conduct, a lawyer may limit the scope of representation as long as 1) the limitation is reasonable under the circumstances and 2) the client gives informed consent. The model rules or substantially similar rules have been adopted in most states. E.g, see ABA Center for Professional Responsibility, State Adoption of the ABA Model Rules of Professional Conduct.

Resources:

Stephanie L. Kimbro, The Ethics of Unbundling, 33 Fam. Advocate 27 (2010).

  • This article explores how attorneys and firms can ethically provide limited scope representation. Kimbro provides guidance on determining whether limited scope representation is appropriate for a particular attorney and/or firm, and includes practical steps that members of the profession can take to ensure that clients and cases are appropriate for limited scope representation.

What do the ABA Model Rules mean by “reasonable under the circumstances”?

Generally, this refers to competent and diligent representation. (ABA Model Rules Comment [7] to MRPC 1.2.) Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. An attorney must be competent in the area of law in which she or he is offering unbundled legal services, and must make sufficient inquiry of the client and obtain all the facts necessary to give good legal advice. Diligent representation means that a lawyer must not neglect a legal matter entrusted to the lawyer. (MRPC 1.1 and 1.3.)

An unreasonable limitation is that which interferes with the knowledge, skill, thoroughness, or preparation required to competently represent the client.

For example, if a client wants general information concerning an uncomplicated legal problem, the lawyer and client can agree that the lawyer’s services would be limited to a brief telephone consultation. However, to be reasonable under those circumstances, the amount of time allocated must be sufficient to yield advice on which the client could rely. Similarly, a lawyer may represent a client for only the temporary orders hearing in a divorce case because it is a discrete event, but, because the various financial issues are intertwined, may not represent a client for a division of marital property permanent orders hearing without including the issues of maintenance and attorney fees. 

What do the ABA Model Rules mean by “informed consent”?

 “Agreement by a person to a proposed course of conduct after a lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” (MRPC 1.0(g).)

A lawyer should include in his or her retainer agreement an explanation about the advantages of full representation, along with the disadvantages of additional costs, as well as the less costly, but perhaps more difficult, alternative of proceeding pro se.

I am concerned that I will have more malpractice exposure. Will my risk for malpractice increase?

Data thus far seems to indicate that it should not. Attorneys currently practicing unbundled representation have not seen distinction in coverage or higher rates for malpractice insurance.

Resources:

Stephanie I. Kimbro, Lawyers Mut. Liab. Ins. Co. of N.C., Unbundled Legal Services: Risk Management Handouts of Lawyers Mutual (2010).

  • In this handout, Kimbro discusses best practices for lessening malpractice risk when integrating unbundled legal services into a legal practice.

Colorado Bar Association, Practical and Ethical Considerations to Integrated Unbundled Legal Services (2015).

  • According to the information provided in this comprehensive Handbook, malpractice carriers have not reported additional claims related to unbundled legal services and attorneys providing unbundled services have not seen a distinction in terms of coverage or costs when disclosing to insurers that they are handling cases on a limited scope basis.

Family law cases require adjudication. How do I respond to those who maintain that such matters cannot be handled in a “piecemeal” fashion?

Discrete task representation has been standard practice outside of the arena of adjudicatory matters, but because attorneys traditionally are taught to approach litigation cases strategically and systematically, they have been slower to accept unbundling for matters requiring adjudication. This is changing because of: 1) increased availability of education and training to help attorneys recognize cases and clients suitable for discrete task representation; 2) clarification of professional ethical concerns; 3) increased number of jurisdictions providing rules and forms governing entry and withdrawal of limited service appearances; and 4) marketplace pressures caused by increased need for legal services by people of low and modest income and lack of available work for new attorneys.

Resources:

Stephanie Kimbro, Serving the DIY Client: A Guide to Unbundling Legal Services for the Private Practitioner (2012).

  • Agreeing that unbundling is not appropriate for every case or every client, Kimbro enumerates factors that an attorney should consider in determining whether a case may be unbundled.

Forrest S. Mosten, Unbundled Legal Services Today—and Predictions for the Future, 35 Fam. Advocate 14 (2012).

  • Mosten argues that the unbundled legal services delivery model is beneficial to family law attorneys and clients. Predictions for unbundling in the future include an increased demand by clients for these services. 

Michele N. Struffolino, Taking Limited Representation to the Limits: The Efficacy of Using Unbundled Legal Services in Domestic-Relationship Matters Involving Litigation, 2 St. Mary’s J. Leg. Mal. & Ethics 166 (2012).

  • This article details the difficulties created by providing unbundled legal services in domestic relations cases. In arguing that full service representation is critical in domestic relations cases, Struffolino compares limited scope representation services to full service representation models.

Kristin M. Blankley, Adding by Subtracting: How Limited Scope Agreements for Dispute Resolution Representation Can Increase Access to Attorney Services, 28 Ohio St. J. on Disp. Resol. (2013).

  • Blankley urges that limited scope representation be used more often in providing representation in dispute settling procedures and less often in conducting traditional court-required tasks, such as pleading, drafting, and court appearances.