As the population of attorneys has grown, so has the market for offering limited scope representation as a response to the increased needs of individuals and companies and their inability to either pay for a full scope of services or the desire to be efficient with internal legal budgets.
COUNSELUNITED recognizes that many of its members offer “unbundled” services; the following reflection addresses the trend of unbundling legal services:
- A Contextual Glimpse at the Need for “Unbundled
Legal Services”
What
exactly does “unbundled legal services” pertain to? Before providing an explicit definition,
there must be some context to work with.
Consider this, “[a]n abstract legal right is worthless without a
correlative right of access to the judicial system to enforce it.”[1] To this end, “[o]ne of the basic principles,
one of the glories, of the American system of justice is that the courthouse
door is open to everyone – the humblest citizen, the indigent, the convicted
felon, the illegal alien.”[2]
However,
an unfortunate situation exists in our legal system today thereby closing this
proverbial door on those who cannot afford adequate legal representation. Specifically, there exists a population of
low-income individuals who do not “fall into the minuscule proportion of the
population that qualifies for free legal assistance”[3] and are therefore “forced
to bring their own complaints and represent themselves without the benefit of
counsel.”[4]
For
example, the “increasing population of elderly persons in the United States has
created a growing segment of the population that can neither pay for its own
legal services nor qualify for free legal aid.”[5] In a recent study of legal needs of low and
moderate-income households, it was discovered that “low-income households’
legal problems involved the judicial system only twenty-nine percent of the
time, and that no action of any kind
was taken thirty-eight percent of the time.”[6] Further still, in households “defined as
moderate-income, and thus categorically ineligible for most free legal
services, the judicial system was involved only thirty-nine percent of the
time, and no action was taken in
twenty-six percent of cases.”[7] These raw figures substantiate the
unfortunate reality that “low and moderate-income individuals and families have
extremely limited opportunities to access the civil justice system.”[8]
“Although
our legal system attempts to provide free legal services . . . through the
Legal Services Corporation, it turns away thousands of potential clients
annually.”[9] “Dramatic cutbacks in the Legal Services Corporation
budget have further compounded this problem.”[10] It is against this backdrop in which
“unbundled legal services” is analyzed.”
- A Call to Action: Defining “Unbundled Legal
Services” and Relevant Boundaries
Under
Rule 1.2(c) of the Model Rules of Professional Conduct, “[a] lawyer may limit
the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.”[11] This latest version of Model Rule 1.2(c)
explicitly provides only the client can limit the objectives of representation so
long as such representations are “reasonable under the circumstances.”[12]
Accordingly,
unbundled legal services pertains to “the process of breaking down legal
problems or issues into their components, enabling clients to choose selected
aspects of the problem for a lawyer’s representation, assistance, or advice.”[13] “[R]ather than representing a client in
connection with an entire legal matter, the lawyer is engaged to perform a
specific task, or represent the client in
connection with a specific aspect of the matter.”[14] Examples of unbundled legal services include:
legal hotlines, websites, and pro se clinics.[15]
While
the underlying rationale of offering unbundled legal services is an undoubtedly
honest attempt to aid society, a question exists as to “whether the lawyer’s
limited scope of responsibility would amount to a violation of the lawyer’s
ethical or legal obligations.”[16] Additional lawyer-centered concerns “include
the absence of an ongoing attorney-client relationship; lack of knowledge of
the ultimate result for the client . . . ; a ‘superficial’ work product; fear of
. . . malpractice, and of being called into court when the judge learns that a
lawyer drafted the pro se litigant’s complaint . . . .”[17]
To
highlight the potential for malpractice, think about the following
hypothetical: “a volunteer attorney staffing a general legal hotline can
competently answer a simple question about a traffic ticket.”[18] “On the other hand, an attorney who has
agreed to provide more substantial limited assistance, such as ghostwriting a
pleading, would be required to engage in substantially greater investigation of
her client’s legal circumstances as a whole to properly determine what further
assistance may be required”[19] Now, pretend the client in the second
scenario simply asks for a ghostwritten pleading in response to a bank
foreclosing on his house. How can the
lawyer put blinders on and provide this pro se litigant such miniscule
representation without more information about the case in general? In this more involved situation, the attorney
faces a greater risk of failing to diligently represent his or her client. In particular, Model Rule 1.3 states that
“[a] lawyer shall act with reasonable diligence and promptness in representing
a client.”[20] However, by failing to file a complaint on
time, or perhaps by failing to inform a client about progress on the case, a
lawyer can be disciplined for one single incident.[21] Without the established attorney client
relationship, or a specific agreement, the boundary line is fuzzy as to when
representation begins or ends.[22]
Because
of these ethical and legal concerns, a divide exists as to the extent courts
will allow unbundled legal services (if at all). At the outset, several federal court opinions
have condemned the idea of “ghostwriting” a brief for pro se clients under the
basic purpose of Rule 11 of the Federal Rules of Civil Procedure.[23] Nonetheless, analysis of case law “provides
two insights on the question of whether lawyers and clients should be able to
bargain for less than full performance.”[24] “First, lawyers do accept cases with the
understanding that they will not engage in the fullest representation
possible. Second, courts generally
consider this practice legitimate.”[25] For instance, some jurisdictions may “analyze
lawyer malfeasance under a contract theory” in that the courts “support the
proposition that knowing and voluntary agreements limiting attorney performance
are valid.”[26] In a jurisdiction that analyzes the lawyer’s
malfeasance under a tort or fiduciary theory, the court will consider whether
or not the “lawyer who limits her performance by agreement more than would a
reasonably prudent lawyer cannot insulate herself from malpractice liability.”[27] Taken as a whole, it is apparent that “courts
are willing to approve advance agreements that define how a particular lawyer
will perform.”[28] Thus, the logical inquiry turns to what
measures can be taken to ensure diligent, ethical representation while
providing unbundled legal services.
- Addressing the Concerns: Are Unbundled
Legal Services Feasible?
“Many
who promote unbundled legal services believe that these services will provide
increased access to the legal
system for low and moderate income people.”[29] Notably, unbundled legal services, “although
currently promoted by the ABA and others as a reliable mechanism for stretching
scarce resources, raises a host of ethical issues affecting its viability.”[30] Specifically, “one must examine whether or
not the practice violates the traditional conceptions” of competent, diligent
representation.[31] For example, consider the above hypothetical
of an attorney who drafts pleadings on behalf of a pro se client. Does that attorney “have any ethical
obligation to assist the client if he is subsequently unable to proceed pro se?”[32] Specifically, “[w]hat ought the lawyer do
when the client requests additional assistance but is unable to pay for it?”[33]
The lawyer’s “duty of diligence obviously applies only
for the duration of the client-attorney relationship.”[34] Therefore, it is imperative for purposes of
“unbundling” legal services, the attorney clarifies the status of his or her
relationship with the client. If the
client still wishes to pursue an unbundled option, the lawyer should highlight
the extent of his services, make sure the client sufficiently understands the
consequences of proceeding pro se, and the lawyer must “engage in sufficient
factual investigation to identify relevant legal issues” to avoid any ethical
breaches for lack of competency or diligence.[35] With proper prior planning and well set
boundaries, unbundled legal services are feasible alternatives for those in
need.
[1] John C. Rothermich, Ethical and Procedural Implications of
“Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice,
67 Fordham L. Rev. 2687, 2687-88 (1999) (discussing the concept behind
unbundled legal services and its overall importance).
[2] Id. (quoting NAACP v. Meese,
615 F. Supp. 200, 205-06 (D.D.C. 1985).
[3] Id. at 2688
[4] Id.
[5] Mary Helen McNeal, Redefining Attorney-Client Roles: Unbundling
and Moderate-Income Elderly Clients, 32 Wake Forest L. Rev. 295, 295 (1997)
(addressing the emerging needs of “unbundled legal services” for the elderly).
[6] Rothermich, supra at 2688 (emphasis added).
[7] Id. (emphasis added).
[8] Id.
[9] McNeal, supra at 297.
[10] Id.
[11] Model Rules of Prof’l
Conduct Rule 1.2(c) (2007).
[12] Id. cmt. (noting that the new version of Rule 1.2(c) effectively
swapped the term “objectives” with “scope”
thereby placing the ability to limit “objectives” of representation in
the hands of the client).
[13] McNeal, supra at 296 (citation omitted).
[14] Model Rules of Prof’l
Conduct Rule 1.2 cmt. (2007).
[15] Id.
[16] Id.
[17] McNeal, supra at 301.
[18] Rothermich, supra at 2694.
[19] Id.
[20] Model Rules of Prof’l
Conduct 1.3 (2007).
[21] Id.
[22] McNeal, supra at 318.
[23] Rothermich, supra at 2716 (noting the basic purpose
of Rule of the FRCP “is to deter the filing of pleadings and motions in court
that are not adequately grounded in fact or law.” To serve these ends, Rule 11 requires any
pleading or motion submitted to a court be based upon the filing party’s
belief, formed after a reasonable inquiry.).
[24] Fred C. Zacharias, Limited Performance Agreements: Should
Clients Get What They Pay For?, 11 Geo. J. Legal Ethics 915, 918 (1998).
[25] Id.
[26] Id.
[27] Id. at 919.
[28] Id. at 921.
[29] McNeal, supra at 330.
[30] Id. at 311.
[31] Id.
[32] Id.
[33] Id.
[34] Id. at 318.
[35] Id. at 336.
