Why Should Courts Encourage Unbundled Legal Services?

A Description of the Problem: Access to Justice, Procedural Fairness, and Court Efficiency

“There is widespread consensus that this ‘justice gap’ between rich and poor litigants threatens the credibility of the justice system, undermines public confidence in the law, and distorts the accuracy of judicial decision-making.” [1]

Most agree that litigants benefit from attorney representation in the court system. Yet, in some state courts, more than 80% of court cases involving divorce, legal separation, or allocation of parenting responsibilities involve at least one party who does not have an attorney. Legal representation has been effectively priced out of reach for those of modest means and, increasingly, even the middle class cannot afford the cost of a lump sum retainer or the full services of a lawyer. Moreover, many litigants, even if they can afford it, simply do not want a lawyer involved in their divorce case: they are concerned that once they engage an attorney, counsel fees for full representation will become prohibitive, or they mistrust lawyers and fear they will lose control over their case.

For the vast majority of Americans, contact with general jurisdiction courts is through family law cases. When entirely unrepresented by counsel, this large portion of our population often comes to court uninformed and overwhelmed, seeking substantial help from court staff and the judge. As a result:

• Court staff spend substantial time assisting self-represented litigants, often without guidance on how to navigate the line between providing legal information and legal advice;
• Judges spend valuable court time explaining the issues and proceedings to self-represented litigants while navigating the balance between enforcing applicable procedures and ensuring access to justice;
• Represented parties and self-represented litigants risk not having their cases heard in a timely manner;
• Self-represented litigants often leave frustrated and unsatisfied, viewing the court system as unfair and unresponsive.

Although many jurisdictions have developed on-site or internet-based self-help centers or provide in-court assistance by non-lawyer personnel tasked with helping the self-represented litigant navigate the tangle of forms and procedures, very few assistance programs provide litigants with actual legal advice. Thus, even if a self-represented litigant shows up in court at the right place and with a completed form, without the information and guidance usually obtained from lawyers, he or she is perhaps not best equipped to follow court procedure or to make informed legal decisions. Litigants “need to know more than which forms to use, how to docket their cases and what time to appear in court. They need assistance with decision-making and judgment. They need to know their options, possible outcomes and the strategies to pursue their objectives.”[2]

What Are Unbundled Legal Services?

“Unbundled legal services,” or discrete task representation, refers to a method of legal services delivery in which a client hires an attorney to assist with specific elements of the matter. These tasks may include any or all of the following: gathering facts; advising the client; discovering facts of the opposing party; researching the law; drafting correspondence and documents; negotiating; reviewing a particular document; and/or representing the client in court. The client and the attorney agree on the specific tasks to be performed by each. Depending on the nature of the involvement, the attorney may enter an appearance with the court. The client represents himself/herself in all other aspects of the case.

Discrete task representation is not new. It is standard practice outside of the arena of adjudicatory matters, particularly in transactional work and estate planning. Because lawyers traditionally have been taught to approach litigated cases systemically, they have been slower to embrace unbundling for matters requiring adjudication. However, that attitude is changing due to the increasing availability of education and training to help attorneys identify which cases or clients are suitable for a discrete task approach; clarification of professional ethical concerns; availability in an increasing number of jurisdictions of rules and forms governing entry and withdrawal of limited appearances; and the changing legal marketplace, including an increasing need for legal services for people of low and middle income and a lack of available work for newly-minted lawyers.

How Unbundled Legal Services Provide a Partial Answer

“The better the litigant is prepared, the more efficiently the court operates. While judges would no doubt prefer fully represented litigants, the choice in most venues is a self-represented litigant who is well prepared or one who is not. Courts can avoid litigants who are in a procedural revolving door when those litigants have access to the services lawyers provide.”[3]

Although they provide valuable assistance, online self-help forms and court-based facilitators are not a substitute for lawyers. Only lawyers can provide legal analysis specific to the facts of the case or give strategic direction in completing forms, preparing documents, or presenting a case in court.

While it is true that unbundled legal services is not appropriate for every situation, as an accepted form of legal services delivery, it can enable attorneys to serve people who otherwise would not have had the benefit of the advice of counsel. In turn, the use of unbundled legal services can increase the number of prepared self-represented litigants, facilitate informed settlements, and, by smoothing the flow of the adjudicatory process, free docket, staff, and judge time to resolve disputes in a timely and efficient manner.