1. What is “unbundled legal services”?
  2. What are different types of unbundled legal services?
  3. Is it permissible to ghostwrite pleadings for my client?

What is “unbundled legal services”?

“Unbundled legal services” is also known as limited scope representation or discrete task representation. It refers to a method of legal services delivery whereby a client hires an attorney to assist with specific elements or tasks, for example, legal advice, document review or document preparation, coaching negotiations, and/or limited appearances in court. The client and attorney agree on the specific discrete tasks to be performed by each. Depending on the nature of the involvement, the attorney may or may not enter an appearance with the court. The client represents himself/herself in all other aspects of the case.

Resources:

Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421 (1994).

  • This seminal article on unbundled legal services encourages family lawyers to rethink the lawyer-client relationship as it relates to the traditional legal services delivery model. To facilitate new ways of thinking about the practice, Mosten sets forth three unbundled legal services delivery models: 1) legal counselor; 2) consulting lawyer for clients participating in mediation; and 3) preventative legal health care.

Stephanie Kimbro, Unbundling: What is It?, 35 Fam. Advocate 8 (2012).

  • Kimbro discusses the background of unbundled legal services and recent developments. This article also explores best practices and procedures that a lawyer must follow in order to responsibly unbundle work for a client, including a discussion of substantive legal matters in which unbundling may not be appropriate.

What are different types of unbundled legal services?

  • Providing legal guidance or opinions
  • Directing clients to resources and rules
  • Drafting pleadings, briefs, declarations, or proposed orders
  • Conducting document review
  • Legal research
  • Organizing discovery materials
  • Drafting contracts and agreements
  • Coaching on strategy
  • Role playing
  • Negotiating
  • Online and alternative dispute resolution
  • Advising on courtroom procedures or behavior
  • Preparing exhibits
  • Making a limited appearance(s)
  • Collaborative lawyering

 

 

 

 

 

 

 

 

 

 

 

 

Resources:

Forrest S. Mosten, Unbundled Services to Enhance Peacemaking for Divorcing Families, 53 Fam. Ct. Rev. (July 2015).

  • This article discusses how unbundled legal services can enable professionals to help divorcing families reduce conflict. Mosten sets forth examples of unbundled legal services and explores four unbundled peace-making roles that lawyers can play.

Is it permissible to ghostwrite pleadings for my client?

State:

Ghostwriting is a term generally used to describe the drafting of documents by attorneys for clients without filing a notice of appearance. The rules on ghostwriting pleadings vary from state to state. Some require disclosure of attorney involvement (for example, Florida and Nebraska); others do not (for example, California). Some states require disclosure for attorney drafting of pleadings and papers but not for assistance with pre-printed judicial forms (for example, Colorado).

Resources:

ABA Unbundling Resource Center, Document Preparation.

  • This American Bar Association compilation of state ethics opinions pertaining to document preparation and ghostwriting details those states in which attorneys are not required by state rules to disclose drafting assistance to the court, and those in which attorneys and legal service providers are under an obligation to disclose this assistance to the court.

Paula Frederick, The Ethics of Ghostwriting Pleadings, 13 Ga. B. J. 46 (2007).

  • In this short bar journal article, Frederick explores Rule 1.2(c) of the Georgia Rules of Professional Conduct permitting limited scope representation. Frederick cautions that while the ABA accepts and Georgia allows the provision of legal assistance without requiring an attorney to disclose the nature and extent of such assistance to the court, not all jurisdictions agree.

Federal:

With the exception of prisoner cases, most federal courts do not allow ghostwritten pleadings. However, there may be some softening of that position. 

Resources:

See and compare Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) (the Court in Duran held that ghostwritten briefs and anonymous testimony were not allowed) and A Judge Comments, 39 Litigation 37 (2013).

  • Providing a judicial perspective, Colorado District Court Judge John L. Kane criticizes unbundled legal services and the ghostwriting function that can accompany this kind of service delivery. Kane warns of the pervasive impact on equal justice and accountability if unbundled legal services and ghostwriting become widely accepted practices. 

with In re Liu, 664 F.3d 367 (2d Cir. 2011).

  • The Court in In re Liu found that the attorney’s undisclosed ghostwriting of petitions for review did not constitute sanctionable misconduct.