Unbundling Legal Services: A Toolkit for Court Leadership

In 2010, the New York Times featured a call to action from two former state chief justices, who called upon the legal profession to promote the availability and use of unbundled legal services to help close an ever-widening “justice gap.” See John H. Broderick & Ronald George, A Nation of Do-It-Yourself Lawyers (2010).

Unbundled legal services, in which a client hires an attorney for agreed-upon discrete tasks, is indeed a partial solution to the access to justice problem in our nation’s courts, and has become increasingly used and accepted in the last several decades. And, proponents believe that in cases involving divorce, separation, or parenting time, the use of unbundled legal services by parties who have never sought the advice of counsel can increase the number of prepared litigants and result in more available docket, court staff, and judge time.

Although unbundled legal services provide more flexibility to a litigant, and is usually far less costly than full service representation, too few attorneys offer it, and too many litigants do not know about it. While there are more attorneys offering unbundled legal services and a growing list of jurisdictions recognize it, the access crisis remains, the justice gap continues to widen, and too many litigants remain unaware of the option of seeking targeted legal assistance.

Securing access to justice in the court system is a fundamental goal and responsibility of judicial leadership. The support of the courts is absolutely essential in order for unbundled legal services to take hold. Chief justices and chief judges are uniquely positioned to help close the justice gap through hands-on encouragement and support of unbundled legal services within their respective jurisdictions.

The purpose of this toolkit is to provide judicial leaders quick access to information on unbundled legal services and ways to promote its availability and use. It is formatted to suggest alternative means by which chief justices, chief judges, clerks of court, court administrators, and other judicial leaders can encourage and support this legal services model to improve litigant outcomes, public trust and confidence, and court efficiency in cases involving divorce, legal separation, and parenting responsibilities.

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.

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.

The following model documents should be used by court leaders to encourage and incentivize the use of unbundled legal services in their jurisdiction. Each letter or form is available for download as a PDF or Word document.

1. Encouraging Family Law Bar to Provide Education and Training in Unbundled Legal Service (PDF / Word)

2. Encouraging Civil Rules Committee/Ethics Committee to Develop Rules on Unbundled Legal Services (PDF / Word)

3. Encouraging Court Leadership to Promote Unbundled Legal Services (PDF / Word)

4. Letter from Family Court Chief Judge to Self-Represented Litigants Explaining Unbundled Legal Services and Promoting Use (PDF / Word)

5. Encouraging Family Law Bar Association to Make Available a List of Attorneys Who Provide Unbundled Legal Services (PDF / Word)

6. Court Provided Letter/Form to Be Sent by Bar Association to Attorneys to Join List of Lawyers Offering Unbundled Legal Services (PDF / Word)

   • Unbundled Legal Services Sign-Up (PDF / Word)

The following checklist summarizes what court leaders should know about the status of unbundled legal services in their state.

• Is there a civil/family court/professional conduct/ethics rule of procedure for the practice of unbundled legal services in our courts?
• Do we have civil/family court/professional conduct/ethics rules of procedure and forms concerning the manner in which the lawyer creates the entry of limited appearance?
• Do we have rules of procedure/forms concerning client consent?
• Do we have civil/family court/professional conduct/ethics rules of procedure for withdrawal/termination or completion of limited appearance?
• What, if any, is our rule on ghostwriting of pleadings and/or briefs?
• What is our rule of procedure/ethics rule concerning communication with self-represented parties?
• What are our rules/forms concerning notice of limited representation to opposing parties and/or their counsel?
• Do we have rules concerning service of papers on a limited scope lawyer?
• What are the state ethics opinions relevant to unbundled legal services? Have we adopted ABA Model Rule 1.2(c)(concerning the ethics of providing unbundled legal services)?
• Do our state malpractice insurance carriers specifically insure the provision of unbundled legal services?

The following resources may be helpful as you develop, encourage, and enhance unbundled legal services in your jurisdiction.

1. Compilation of Court Rules: National Center for State Courts, Self-Representation State Links: Unbundling Rules.

2. Report of the Joint Iowa Judges Association and Iowa State Bar Association Task Force on Pro Se Litigation.

3. Connecticut Bar Task Force on Limited Scope Representation, Report of the CBA Task Force on Limited Scope Representation (rev. Oct. 8, 2012).

4. Judith L. Kreeger, To Bundle or Unbundle? That is the Question, 40 Fam. Ct. Rev. 1, 87 (2002).

5. Modest Means Program, Oregon State Bar.

6. State Family Law Advisory Committee Members, Oregon Judicial Department.

7. Trial Court of Massachusetts, Limited Assistance Representation Training Manual.

8. Merrie-Roxie Crowell, Chair, Report of the Unbundled Legal Services Monitoring Committee (March 3, 2005).

9. Forrest Mosten, Unbundling Legal Services in 2014: Recommendations for the Courts, 53 Judges J. 10 (Winter 2014).

10. Rochelle Klempner, Unbundled Legal Services in Litigated Matters in New York State.

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

12. Report of the Special Committee on Limited Scope Representation (Missouri 2004).

13. John T. Broderick, Jr. & Ronald M. George, A Nation of Do-It-Yourself Lawyers, New York Times, Jan. 1, 2010.

14. Richard Zorza, A New Day for Judges and the Self-Represented: The Implications of Turner v. Rogers, 50 Judges J. 16 (Fall 2011).

15. “20 Things Judicial Officers can do to Encourage Attorneys to Provide Limited Scope Representation,” reprinted from The Bench, news journal of the California Judges Association (2003).

16. American Bar Association, Resources, Standing Committee on the Delivery of Legal Services.

17. American Bar Association, Unbundling Fact Sheet, Standing Committee on the Delivery of Legal Services.

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

19. ABA Standing Comm. on the Delivery of Legal Serv., An Analysis of Rules that Enable Lawyers to Serve Pro Se Litigants (2009).

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

21. Mark A. Juhas, A Judge’s View on the Benefits of ‘Unbundling’, Cal. B.J. (2015).