Clear rules of professional responsibility and civil procedure are the foundation for encouraging the adoption and spread of unbundling as a viable legal services delivery model. There are many existing models for rules amendments, including Rules 1.2(c) and 6.5 of the ABA Model Rules of Professional Conduct, which a number of states have implemented in identical or similar form. But even the best rules do not guarantee that lawyers will offer unbundled services or that clients will know to ask for unbundled services. Rulemakers and regulatory bodies can help bridge this implementation gap in a number of ways to support practitioners who want to offer clients unbundled services:
- Develop additional explanatory comments and materials to accompany ethics rules, with guidance for practitioners.
- For example, Michigan Rules of Professional Conduct 1.2(b) states that a lawyer may limit their scope of representation. Rules 1.2(b)(1)-(2) further explain that a lawyer may draft or partially draft pleadings and is not required to sign the pleading or identify themselves, but the pleading must include specific language that it was drafted with the assistance of a lawyer. Further, the Comment section of Rule 1.2 provides specific examples of appropriate limited representation.
- Support the creation and widespread dissemination of toolkits and other instructional materials for attorneys on how to unbundle services ethically and efficiently.
- Publish articles and other official statements authored by regulators and bar leaders, to provide reassurance that the unbundled model is both authorized and encouraged.
- For example, California judge Mark A. Juhas wrote an article published in the California Bar Journal highlighting the many benefits of limited scope representation. He not only confirms that limited scope representation is permitted, but he states that “judicial officers statewide enthusiastically welcome [it].”
- Educate malpractice carriers on the unbundled model and assure them that this model is not only authorized by professional regulatory authorities but encouraged.
- Encourage carriers to explicitly include unbundled legal services as a covered activity in their informational and advertising materials.
- Rethink common perceptions of what it means to protect clients. Because there is an ongoing access to justice crisis where clients need attorneys but cannot afford them, regulators cannot focus solely on how to protect clients from harm when they do hire an attorney and ignore the harm that occurs when a client who needs an attorney cannot hire one.
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