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Unbundled legal services increasingly popular

In an uncertain economy, lawyers are using unbundled legal services to expand their client base.

The practice of unbundling legal services, also known as limited scope representation, falls into three general categories: consultation, such as giving advice and direction; document preparation, sometimes referred to as ghostwriting; and limited representation in court.

The idea is that with a lawyer’s help, clients can “more effectively spend their litigation money,” explained M. Sue Talia, a private family law judge in Walnut Creek, Calif. and the author of Unbundling Your Divorce .

The increasing popularity of unbundled legal services can be attributed to a number of factors, Talia said, including the reality that “over the last 10 years, middle class individuals have basically been priced out of legal representation. They don’t qualify for legal aid and they can’t pay for full service.”

In addition, greater access to technology and the growing self-help movement have increased the number of people who don’t see the need to pay a lawyer as a gatekeeper to the legal system, she said.

Forrest Mosten, an attorney at Mosten Mediation in Los Angeles and the author of Unbundling Legal Services , said that the economy has also been a factor.

“Even in good times, most people can’t afford a full-service lawyer, and challenging economic times like these make it even harder for people to afford full representation,” he said.

According to Talia, courts and bar associations are increasingly encouraging attorneys to perform unbundled services, in part because of the surge in pro se litigants, which slows down courtrooms and causes delays and headaches for judges.

On May 1, Massachusetts’ highest court issued an order expanding a limited scope representation trial program in some of the state’s probate and family courts to the entire state court system.

In a statement , Chief Justice Margaret A. Marshall said that unbundling legal services “is a proven method for addressing the needs of justice in our 21st Century courts.”

And on May 15, the California Board of Governors (the governing body of the California state bar) adopted a resolution advocating unbundling legal services, as well as recommending that CLE programming be held on the topic and malpractice insurers provide coverage for it.

More pro se litigants

The recent order from Massachusetts’ highest court stated that more than 80 percent of litigants in Family and Probate Court matters and 90 percent of litigants in Housing Court matters lack an attorney, either because they do not qualify for free legal assistance or cannot afford to pay for full-service counsel.

Talia noted that in California, 70 percent of individuals are unrepresented at the time they file for divorce – and 80 percent don’t have representation by the time their case is finished.

While some lawyers view unbundling as taking work away from them, in reality, it’s “an opportunity” to obtain work from clients who would otherwise go without counsel, Talia said.

For example, in a family law case, there may be no need for a lawyer’s help to divide the furniture, but those services would be valuable for divvying up stock options or a pension plan, she said.

Limited scope representation can also work well in other areas where “the litigant comes into direct contact with the court system” such as lemon law cases, homeowners’ association disputes or small claims matters, said Talia, who trains lawyers around the country on providing unbundled legal services. (To watch her presentation on limited scope representation, visit the Practising Law Institute site .)

How it works

Susan Millican O’Brian, founder of the Law Offices of Susan Millican O’Brian and Associates in Redmond, Wash., says that unbundled services make up about 10 percent of her divorce practice. “And the calls are increasing,” she noted.

For a full service divorce, O’Brian requires a $4,000 retainer. Depending on how many issues are contested and whether or not children are involved, a divorce can cost between $10,000 and $50,000.

But she charges only $275 per hour for unbundled legal services.

“I just had a woman bring in some paperwork that had been drafted by a fairly new attorney and we agreed that I would go through the paperwork and send her a letter of the things I think should be changed and offer some proposed language,” O’Brian said.

In a relatively simple case like that, the cost will range between $750 and $1,500.

For clients who want limited scope representation but also want to be able to call or e-mail the office, O’Brian offers the option of depositing $250 in a trust account that she can draw on to pay for the time spent on calls and e-mails.

O’Brian devotes a great deal of time to reviewing the boundaries of her representation with clients, and says she has never had a problem with unbundled legal services.

She asks clients to sign a four page agreement and initial key sections to make sure they understand exactly what she is – and is not – doing for them.

O’Brian notes that clients who use unbundled legal services “are more appreciative” that other clients.

“Sometimes people involved in litigation don’t fully understand the scope of it all and how complicated it is,” she said. But clients who are doing some of the work themselves “are really grateful for what we do.”

Screening and consent

Unbundled services are not right for every lawyer or for every client.

Mosten recommended that lawyers screen their clients to determine if they can properly handle the tasks involved in a case.

The American Bar Association’s Model Rules of Professional Responsibility 1.2(c) establish two requirements for ethical limited services representation: informed consent by the client and a determination by the lawyer that the scope of service is reasonable under the circumstances.

“As long as you draw a very bright-line box around the scope of your representation, you should be safe,” Talia said. “But be careful about re-drawing [that box] when the scope changes. Just tell your clients that you would be happy to make a court appearance as soon as they sign the revised client agreement.”

There is currently a national debate over one specific area of limited scope representation: document preparation, or ghostwriting.

Some states, such as California, don’t require disclosure if a lawyer prepares a document on behalf of a client but doesn’t appear in court, because that is considered a breach of the attorney-client privilege, Talia said.

Other states, such as Florida, require that a document must disclose if it has been prepared with a lawyer’s assistance. And some states, including Colorado, require that even if an attorney makes no court appearance, if he assisted with document preparation then his contact information and bar number must be disclosed.

For more information on unbundled legal services, visit the National Center for State Courts site or the resource page of the American Bar Association Stand
ing Committee on Legal Services .

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