Talking Points for Courts
On the practice of unbundled legal services …
- Unbundled legal services or discrete task representation describes a legal service delivery model whereby an attorney assists a client with specific elements of the matter, as opposed to handling the case from beginning to end.
- This type of practice is standard among transactional and estate planning attorneys, and is increasingly moving into the adjudication context. Legal aid providers around the country have been leveraging this model of service delivery for years.
On the scope and types of unbundled legal services …
- Through an unbundled legal services model, an attorney and his/her client agree on the specific tasks that each will perform.
- Depending on the agreement, an attorney may engage in any number of discrete tasks:
- Drafting pleadings, briefs, or orders;
- Reviewing documents and organizing discovery materials;
- Conducting legal research;
- Negotiating with opposing parties or counsel;
- Engaging in alternative dispute resolution;
- Coaching on strategy;
- Advising on courtroom procedures or appropriate courtroom behavior;
- Preparing exhibits;
- Providing legal guidance and advice;
- Making an appearance in court.
- For unbundled legal services agreements that anticipate representation in court, an attorney can properly limit the scope of services by filing a Limited Entry of Appearance with the court and a Notice of Termination of Appearance at the conclusion of the service(s).
On the need for unbundled legal services …
- Cost of Legal Representation: The cost of obtaining full-service legal representation is prohibitive for low-income individuals, and, increasingly, the middle class cannot afford representation. As a result, the percentage of cases in which one or both parties are without legal representation is increasing, with very real impacts on case outcomes, as well as public trust and confidence in the legal system.
- Growing Demand for Client Control: Armed with legal information, rules and procedures, and court forms easily accessible online, clients increasingly desire greater involvement in and control over their legal matters. An unbundled practice model enables clients to drive the course of their legal matter, leveraging only those services they truly need without feeling that they have relinquished control of their case.
- Pressures Placed on Court Staff and Judges: Self-represented litigants often come to court uninformed, unprepared, and overwhelmed. The task of assisting and directing them falls to court staff who are both unable to provide much of the advice for which litigants are looking and unequipped to handle the growing numbers of litigants coming to them. Judges, too, struggle in working with self-represented litigants, as they navigate the balance between enforcing applicable procedures and ensuring access to justice. An unbundled legal services model can increase the number of prepared litigants, facilitate informed settlements, and help to smooth the flow of adjudicatory proceedings.
- A Changing Practice: The practice of law is changing. As a growing number of litigants are proceeding through the court process without legal representation, law practices increasingly have to adapt to the changing marketplace for legal services. This shifting practice environment often affects new lawyers, as more and more struggle to find work after law school. Offering unbundled legal services allows attorneys to respond to market demands and expand—potentially significantly—their client pool to include those who otherwise could not or would not have sought the help of legal counsel.
On responding to criticisms of unbundled legal services …
- Ethical Concerns: The ABA Model Rules of Professional Conduct’s provisions relating to limited scope representation, adopted in most states, authorize this practice so long as the limitation is reasonable under the circumstances and the client gives informed consent. Over forty states have specific ethics rules, above and beyond the ABA Rules, authorizing and regulating the practice.
- Suitability for Certain Cases: Not all cases are suitable for unbundled legal services. By talking with clients, evaluating the circumstances of the legal matter(s), and assessing clients’ abilities, attorneys can adequately screen cases and clients prior to engaging in an agreement to limit the scope of representation.
- Adequacy of Piecemeal Representation for Interconnected Issues: It is true that legal issues are often interconnected. In many cases, however, it is possible to identify discrete tasks. Furthermore, many—if not most—of the clients who would benefit from unbundled legal services would not otherwise hire an attorney for full representation. For these clients, partial representation is often better than no representation.
Call to action …
- Courts should explicitly support the delivery of unbundled legal services and provide clarification on unclear or ambiguous ethics guidelines, including the development of rules and forms governing entrance and withdrawal of limited appearances.
- Courts must ensure education and communication among court staff and judges, so that treatment of limited scope representation cases and messaging about unbundled legal services more broadly is consistent.
- Courts must encourage the state, local, and specialty bars to promote the practice of unbundled legal services, including encouraging the bar to develop a user-friendly directory of attorneys available to offer limited scope services. Courts should be aware of the unbundled listings and actively encourage litigants appearing in court to consider consulting the listings.
- Courts should work with bar leadership to encourage listings of lawyers offering unbundled services and promotion to the public of these services as ongoing functions of the bar associations.
- Courts should encourage the formation of an unbundled services bar section that will offer CLEs and other support services to section members. The court should maintain an active role in supporting the section and offer participation in CLEs, such as panel discussions by judges on unbundled best practices in the courtroom.
- Courts should support interaction between their own self-help centers and any unbundled legal services bar section. The self-help centers can help self-represented litigants identify the type of services they need from a lawyer who offers unbundled legal services.