The national Access to Justice community is buzzing about Resolution 5 of the National Conference of Chief Justices and Conference of State Court Administrators,1 which sets as its goal “100 percent access to effective assistance for essential (basic needs and safety) civil legal needs.” The resolution recognizes that there is no one-size-fits-all solution for everyone’s needs. Instead, it urges states to develop a strategic plan for an integrated continuum of legal services available to the public. Examples range from greater procedural access for self-represented litigants2—such as improved court self-help resources, online advice and mediation resources, and simplified and streamlined court rules—to the use of non-attorney assistance from paralegals and Limited License Legal Technicians. The traditional full-representation attorney relationship is still part of the equation, but no longer the dominant model. In fact, the National Center for State Courts reported that in 2011, 66 percent of all cases heard in Minnesota courts involved the self-represented, including 81 percent of family law cases.3
How does a private attorney stay relevant in a legal marketplace where consumers are increasingly going it alone? A good place to start is by providing unbundled or “limited scope” legal services, defined as “the provision of limited legal services to persons with no undertaking by the lawyer providing those services to provide the complete, ‘bundled’ set of services necessary to achieve the client’s legal objectives.”4 Common examples include transactional work such as reviewing or preparing contracts or separation agreements; providing advice about routine legal questions; or conducting legal research for a client.
The unbundling of legal services is not a new concept. Some readers may recall that the MSBA hosted a Task Force on Pro Se Litigants 20 years ago, with part of its mission devoted to “examining whether attorneys providing unbundled services to pro se litigants is a viable method to ensuring that pro se litigants are better prepared and informed when entering the court system.”5 Unbundling has received renewed attention in recent years as technological innovation has increased the options available to self-represented litigants.
Unbundling allows an attorney to receive fair compensation for representing a client in just part of her or his case. Some firms, looking to capitalize on their willingness to provide unbundled legal services, have begun to promote them on their websites. But unbundling often occurs even if an attorney does not advertise unbundled services. According to Jon Geffen of Minneapolis-based Arneson & Geffen, “My limited scope cases develop organically. While meeting or talking on the phone, it’s clear that the client does not have the resources or the problem is not very complex.” He considers unbundled service at that point.
An additional benefit of providing unbundled legal services is that it pays off in the future. Geffen says he has incorporated unbundled services into his practice since 2009: “Using unbundled services helps my practice because if I provide any valuable service, my clients tend to tell others who come to the firm for more extensive services. I have also found that if I provide limited scope assistance, the client usually returns for additional services. Many clients are skeptical of attorneys and initially wonder if the services I provide are worth the cost. If I prove my services are valuable, I generally see return business.”
Unbundling is Access to Justice Tool
Another reason to consider offering unbundled legal services is the important role it plays in addressing Minnesota’s access to justice gap. Demand for affordable legal services far exceeds the supply. Minnesota’s civil legal aid programs staffed by full-time attorneys turn away two out of every three eligible clients due to a lack of funding, and the income limit is restricted to 125-150 percent of federal poverty guidelines.6 Legal aid programs often work with pro bono attorneys, although the income restrictions are frequently the same. In addition, while many lawyers take pro bono cases from legal aid programs, volunteers alone cannot ensure sufficient access to legal help for low-income individuals. Rather, a spectrum of services, including unbundled legal services, is necessary to meet client needs. Unbundled service is a way to meet clients where they are financially while still providing them a valuable service. “It helps my clients understand the legal process and some of the primary issues facing them as they move forward in their case,” Geffen notes.
Attorneys who hesitate to provide unbundled services because of ethical questions will take comfort in knowing that Minnesota has a set of ethical rules governing the practice. Furthermore, the practice has been explained numerous times in articles by staff from the Office of Lawyers Professional Responsibility (OLPR).7 As Patrick R. Burns, first assistant director of the OLPR, points out, the ethical standards regarding unbundled service focus on communication and setting reasonable expectations for the representation. “The provision of limited scope representation to clients is a valuable tool in meeting the need to provide some level of legal assistance to the many people who need such assistance, but cannot afford full representation,” he says. “So long as the lawyer abides by Rule 1.2 (c), MRPC—the limited scope is reasonable under the circumstances and the client has given informed consent—there should be no concerns with respect to whether such representation is within the bounds of the ethical rules. To the extent lawyers have concerns about engaging in a limited scope representation, they should feel free to call the OLPR and get an advisory opinion at (651) 296-3952.”
Comments 6-8 to Rule 1.2 (c) provide further guidance. Complex matters (such as bankruptcy proceedings or complicated family law cases) and unsophisticated clients are usually not appropriate for limited scope services, and limiting the scope of a service does not exempt a lawyer from normal competency requirements.8
Informed consent means “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” (Minn. R. Prof. Conduct 1.0 (f).) Burns emphasizes that in this situation, three things must be communicated to the client: (1) the services the lawyer will provide; (2) the services the lawyer will not provide; (3) what clients will need to accomplish on their own once the representation has ended.9 Rule 1.5 (b) requires attorneys to communicate to the client the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible.
Ghostwriting a document for a client is permissible, but it has stirred controversy because undisclosed authorship may appear dishonest to the court or skew the proceedings in favor of the self-represented litigant who received undisclosed legal advice. Some have interpreted ghostwriting to contravene the signature requirement of the Minnesota Rules of Professional Conduct 11.01. Burns advises that a conservative approach to ghostwriting pleadings is to indicate on the pleading that it has been drafted with an attorney’s help. He also suggests retaining a copy of the pleading as the attorney prepared it, in the event that a client alters the document before submitting it to the court.10
Visit mnbar.org/unbundled to find a list of unbundled service resources, including articles, blog posts, rules, a model retainer agreement, and more.
LINDSAY DAVIS is the MSBA’s Access to Justice director. She has previously worked as a staff attorney at Southern Minnesota Regional Legal Services, an attorney in private practice, and an adjunct professor at Hamline University School of Law and William Mitchell College of Law. She is an MSBA North Star volunteer attorney.
1 Available at: http://www.ncsc.org/~/media/Microsites/Files/access/5%20Meaningful%20Access%20to%20Justice%20for%20All_final.ashx (last accessed 6/10/2016). See also “Justice for All Fast Facts” and “Justice for All Project Announcement,” National Center for State Courts, 2/1/2016. Available at: http://www.ncsc.org/~/media/Microsites/Files/access/JFA%20Fast%20Facts%20Final.ashx (last accessed 6/10/2016).
2 The term “self-represented litigant” is used interchangeably with the term pro se, which is an older title for individuals who represent themselves in court.
3 McMillan, James E. Eight Rules of E-filing: Rule # 6. Court Technology Bulletin, National Center for State Courts, 9/8/2011. Available at: http://courttechbulletin.blogspot.com/2011/09/eight-rules-of-e-filing-rule-6.html (last accessed 6/10/2016).
4 Patrick R. Burns, “Ethical Considerations in Providing Unbundled Legal Services,” Minnesota Lawyer, 2/7/2005. Available by searching at: http://lprb.mncourts.gov/articles
5 Available at: https://www.mnbar.org/docs/default-source/default-document-library/recommendations-of-the-pro-se-implementation-task-force.pdf?sfvrsn=0 (last accessed 6/10/2016).
6 2012 Minnesota Legal Services Coalition Turndown Study.
7 Visit http://lprb.mncourts.gov/articles and use search terms “unbundled” and “limited scope.”
8 Scott Russell, Opportunity for All or Pandora’s Box? Bench & Bar of Minnesota, Feb. 2007. Available at: http://mnbenchbar.com/2007/02/opportunity-for-all-or-pandoras-box/ (last accessed 6/10/2016).
10 Id. See also American Bar Association Formal Opinion 07-446, “Undisclosed Legal Assistance to Pro Se Litigants,” 5/5/2007.