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.
