Selling civil legal services a la carte — “unbundling” — is touted as offering opportunities for attorneys, clients and the courts but pitfalls remain for the unwary and the response of the public and profession remains to be seen.
Francis “Frank” Connolly, presiding judge in the 4th Judicial District’s civil division, says the explosion of self-represented people in court makes the wheels of justice turn very slowly. Ask Connolly or other civil court judges about pro se problems and the list comes easily. The judges recall pleadings with hand-written versions of events — which may not have any connection to a cause of action. Or there are the pro se litigants who fail to submit crucial financial documents in a divorce case, leaving an incomplete record and leading to more delays. During trials, says Connolly, “you spend half of your time explaining to people, … ‘You are allowed to cross-examine the other side’s witnesses, but you are not allowed to get into an argument with them.’”
In the past decade, the courts and legal community have made significant strides in helping pro se parties, from creating self-help centers and user-friendly forms to offering brief legal advice clinics pro bono. Yet great needs persist. In response, the Minnesota State Bar Association’s (MSBA’s) Pro Se Implementation Committee is encouraging more private attorneys to offer civil legal services a la carte. Often referred to as “unbundling services,” the practice is one advocates say can benefit clients, courts and attorneys.
If done well, unbundling gives pro se litigants better access to justice, enables the courts to work more efficiently, and brings new clients to attorneys’ offices.
Unbundling allows someone of limited means to buy at least some legal help instead of going it alone, proponents say. Clients might hire an attorney for part of a case, such as initial advice, coaching, legal research, discovery, pleading writing, reviewing a proposed settlement offer or even making a limited court appearance.
“Generally, I think it is it is a good idea,” Judge Connolly says of unbundling. “At the end of the day, if the courts are going to ensure that equal justice under the law is provided to everyone, then the court also has to be concerned that everyone is getting the representation they deserve and need, and one way to do that is to be flexible in terms of how these pro se people can be represented.”
Unbundling experts say the demand for unbundled services in law reflects do-it-yourself trends seen in other areas of the economy, from people who go to Home Depot for tools and advice to people who do medical research online to take greater control over their health problems. The Maryland Legal Services Corporation held the first national conference on unbundled services in 2000, the same year the American Bar Association published Forrest Mosten’s guide: Unbundling Legal Services. In 2004, MSBA President James Baillie wrote in Bench & Bar that the profession’s “greatest challenge and Achilles heel” is delivering civil legal services to low- and moderate-income people — and he advocated unbundling as a needed innovation to better meet that need.
Demand for Service
Lawyers have unbundled their services for decades; some call it “limited scope” or “discrete task” representation. Historically, however, unbundling is more common in transactional work than litigation. For example, a real estate attorney might draft a contract, but not sign it or appear in court. By contrast, family lawyers who draft court pleadings do typically sign them, triggering future obligations to appear in court. This creates an obvious barrier to offering document drafting as a discrete service in litigation cases. Despite such challenges, there is a growing interest among state bar associations to figure out how to increase unbundled civil legal services without compromising ethical and quality standards.
The MSBA Pro Se Implementation Committee is working on a Continuing Legal Education (CLE) course to promote unbundling. Targeted for late spring, the class would give attorneys information on best practices, relevant court and ethics rules and model retainer agreements, says Committee Chair Jean Lastine, executive director of Central Minnesota Legal Services. The committee will use the CLE to gauge attorney interest, and hopes to develop an attorney referral panel for clients seeking unbundled services, similar to initiatives in San Diego, San Francisco, and San Jose, California.
Gary Debele, president of Walling Berg & Debele and past chair of the Pro Se Implementation Committee, says unbundling has a double benefit. It is a good way for the private bar to service pro se clients without doing everything pro bono. Further, attorneys might be more willing to do pro bono work if they knew they could limit their time commitment in civil litigation by offering discrete services. As the bar develops formal unbundling training, “I think it is going to be a surprise to a lot of attorneys that this is an option,” Debele says.
It is difficult to estimate how many clients could benefit from unbundled services, but the number is large. Self-help centers, which provide legal information but not legal advice to pro se parties, give one measure of need. Sarah Shella-Stevens, managing attorney for Central Minnesota Legal Services, supervises the newly opened Stearns County Law Library Self-Help Center and says the demand has surprised people. The center’s one staff member served 323 walk-ins and phone calls in the first three-plus months. Susan Ledray, the Pro Se Services Manager for the 4th Judicial District, says her 11-member staff got an estimated 33,000 help requests in 2006. Still, that figure likely underestimates the need. “If we add more staff, we serve more people,” she says.
Unbundling in Practice
Unbundling will fit better into some law practices than others. Debele, a family law attorney, offers such service, but he doesn’t advertise them and they are less than 5 percent of his practice, he says. At $300 an hour, his downtown firm doesn’t attract many people in that market niche. On the other hand, Kevin Fitzgerald, who has a solo practice in Eden Prairie, promotes unbundled services on his website:
“Are you thinking about hiring an attorney but afraid of having to pay for more service than you actually need?” it says. “I am Kevin Fitzgerald and I offer unbundled legal services. My pay-as-you-go approach to practicing law allows clients to receive the right amount of information to make a decision and take action with their case. … My clients save money through unbundling because they are never forced to purchase a package deal of services that includes a service their case does not require.”
Fitzgerald has offered unbundled services in one form or another during his 30 years in practice because market forces required it, he says. Most of his work is family law and he estimates unbundled services are something less than 25 percent of that practice. He charges the same hourly rate as he would for a full-representation case; clients pay for the services before leaving. He will educate clients about the law and procedure, but not advocate — he does not sign pleadings or appear in court. Sometimes clients decide after a session or two that they can’t effectively represent themselves and hire him in the traditional attorney-client relationship, Fitzgerald says.
He has concerns knowing the unbundled services are not comprehensive. “When somebody says, ‘I have enough money to pay for an hour or two of your time,’ the difficulty you have is that you need to understand, right from jump, that you are really going to be putting a Band-Aid on a gun shot,” he says. Still, he thinks the benefits outweigh the downsides, and unbundling empowers people to participate more effectively in the legal system. “To me, one level of the democratic experiment in America is that people should understand and should work in and find effectiveness through their government — including its judicial branch,” Fitzgerald says.
Rules & Risks
More and more states are exploring ways to encourage the unbundling already occurring. In 2005, the National Law Journal reported that nine states had adopted new rules to encourage unbundling, with more states to follow. The MSBA Pro Se Implementation Committee spent several years reviewing Minnesota’s ethics and civil court rules and held focus groups of attorneys and judges. It concluded that more education and training were needed, but not rule changes, says Committee Chair Lastine.
Patrick Burns, first assistant director for the Office of the Director of Lawyers Professional Responsibility, says unbundling is permissible under Rule 1.2 (c) “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” He and many others interviewed for this article emphasized the importance of informed consent — communicating with the client and clearly documenting expectations. “If you get that done, you are 90 percent of the way towards a successful unbundling project,” Burns says. The rules do not require a written agreement, but he recommends having one with at least three key elements:
- What the attorney is going to do for the client
- What the attorney is not going to do for the client; and
- What is going to remain to be done once the attorney is finished.
Burns could not recall any instances where an attorney was the subject of an ethics complaint unique to an unbundled case.
Tim Gephart, vice president for claims for Minnesota Lawyers Mutual Insurance, says his company does not track claims that stem from unbundled services. The insurance application doesn’t ask whether attorneys offer unbundled services. Unbundled services have, however, caused problems in transactional law, he says. As a cautionary tale, he gives the example of two parties who ask an attorney to write the contract for an already-negotiated real estate deal. The lawyer might believe he is acting strictly as a scrivener, Gephart says, while the parties believe the attorney is representing their individual best interests. If the deal goes sour, it means trouble unless the attorney has a clearly written agreement. “From a risk management standpoint, unbundling can be dangerous unless everything is properly and clearly documented,” he says.
Maine family law practitioner and unbundling advocate Elizabeth Scheffee writes that lawyers who offer unbundled services are sued less, are reported to the ethics board less, and have lower accounts receivable. “Be prepared for happiness and success,” she writes in an article on the ABA website. National unbundling expert Mosten writes that unbundling can increase an attorney’s market share and improve job satisfaction. Pro Se Implementation Committee Chair Lastine adds that unbundling could improve the public’s opinion of lawyers, making services more affordable and giving people more say in what services they buy.
Still, grey areas and potential pitfalls are out there. Here are a few practical considerations.
Providing competent service: Attorneys who offer unbundled services have an ethical obligation to decide case-by-case whether or not to offer them to a particular client, says Burns of the Office of Lawyers Professional Responsibility. Attorneys need to ask themselves: Will the services help this person or make matters worse? Does this person have the skills and abilities to follow through with directions? In making that assessment, Burns says, attorneys would need to consider such things as the client’s sophistication, the complexity of the issues involved, and the client’s ability to articulate arguments for and against her position.
Ghost writing a pleading: If clients ask attorneys to write their pleadings and nothing else, do attorneys have an obligation to disclose their drafting role to the court? It seems self-evident that ghost writing would help the courts and clients get better written pleadings, but it remains a grey area for attorneys.
Burns says the Minnesota Rules of Professional Conduct don’t address ghost writing. “My guess is as long as the attorney was acting in good faith and there was an agreement to limit the scope of representation, I would be a little surprised if we would seek discipline of an attorney … simply for ghost writing a pleading,” he says. It is his personal opinion that a legal document should say so if an attorney helped draft it — not necessarily signing it, but a note that says, “drafted with the assistance of … .” Yet he adds that attorneys have legitimate concerns that clients could revise the pleadings after leaving the office, and the attorney’s name would still be on the document as having helped write it.
The Pro Se Implementation Committee considered recommending a rule change requiring attorneys to indicate their role in providing writing help. After holding focus groups, the committee decided not to pursue it. An attorney focus group concluded the disclosure could discourage attorneys from offering unbundled services, and accountability could be addressed in other ways. A focus group of judges “felt disclosure was not needed,” the committee report said.
Limited court appearances: Making a limited court appearance is probably the most problematic of all unbundled services. It could create confusion both for opposing counsel and the court. With whom do they communicate at different points in the proceedings, the attorney or the pro se litigant? Debele says he has heard horror stories of family law cases where an attorney will appear in court and tell the judge he is going to represent the client only for child support, not custody or spousal maintenance. “The judge will say, ‘Oh no you are not,’” Debele says. “’You are either in this case or out of this case. I am not going to sit up here on the bench and try to figure out, well, do I talk to the client or do I talk to you?’”
Judge Stephen Aldrich of the 4th Judicial District says attorneys occasionally make limited appearances in his court room, and “99.99 percent of the time, having a lawyer around is dramatically better than not.” Aldrich, who formerly practiced in family law, hastens to add that attorneys making a limited appearance could have problems since they will have less information on the case than they would if they had participated since the beginning. “That is a matter again of having the clients be clear about what they are buying and what they are foregoing,” he says.
Some attorneys have concerns that they could end up on the hook for full representation after they make a limited appearance. Rule 105 of the Minnesota Rules of General Practice allows an attorney to withdraw: “After a lawyer has appeared for a party in any action, withdrawal will be effective only if written notice of withdrawal is served on all parties who have appeared, … .” However, each judge makes his or her own decision about granting such requests. Aldrich says a judge wouldn’t let an attorney withdraw in a manner that prejudiced a client’s interest. As a practical matter, that usually means the attorney can’t withdraw too close to the next court appearance. But if the court knows in advance the scope of limited representation, the attorney should not have trouble withdrawing, he says.
“The limited appearance is a wonderful device if things are simple enough that they can be dealt with in one day,” Aldrich says. “If you have people who don’t have a lot of money and a lot of complexity in their circumstance, or who have resolved most of their differences and just have a few things left, having a lawyer present often would be useful.”
The New Hampshire Supreme Court adopted new rules effective July 1, 2006, to make unbundling — and limited court appearances in particular — easier. The rules read, in part: “A lawyer may provide limited representation to a client who is or may become involved in a proceeding before a tribunal … provided that the limitations are fully disclosed and explained … .” The rules also contain a recommended sample form which allows the client to specify what court work the attorney will provide: “motion,” “temporary hearing,” “final hearing,” “trial,” or “other.” (Seehttp://www.courts.state.nh.us/rules/pcon/pcon-1_2.htm).
Minnesota unbundling advocates are not pursuing such changes. Time will tell whether limited court appearances in civil litigation catch on as efforts to promote unbundling continue. However, limited court appearances do not appear to be a critical piece of ongoing efforts to better serve pro se litigants. Judge Aldrich says if the only result of efforts to promote unbundling is having more pro se parties get legal advice on the front end, and later having an attorney review their paperwork to assure it reflects the agreement they wanted, the net benefit to the legal system “would be substantial.”
SCOTT RUSSELL is a Minneapolis-based freelance writer.