Volume 18, Number 7
Unbundle Your Practice
By Forrest S. Mosten
You might be surprised to learn that you already "unbundle" in your law practice. There are very few lawyers who provide the complete package of services to all clients. Most of us sell discrete services on a fee-for-service basis or choose to give away discrete services for free.
- Initial consultation. Do you ever see new clients or an existing client on a new matter for a consultation and it never goes any further? You provided advice and either the client decided to go no further or ended up hiring another lawyer (or nonlawyer) to do the work.
- Drafting documents. Do you ever prepare a real estate deed, a power of attorney, or just write a letter-and do nothing else for a client?
- Second opinions. Do people who have retained other lawyers ever come in to see you just to get your views on how their case is being handled?
- Telephone advice. Do strangers ever call you with an isolated legal question? You answer the question and never hear again from that person.
All of these common activities are examples of discrete-task services that you already perform. So what's the big deal about unbundling?
What Is Unbundling?
Unbundling is defined as follows: The client is in charge of selecting one or several discrete lawyering tasks contained within the full-service package. The discrete tasks can be broken down into seven separate tasks:
2. Legal research
3. Gathering of facts
6. Drafting of documents
7. Court representation
In the traditional full-service package, the lawyer is engaged to perform any and all of the tasks listed above to meet the demands of the particular case. In unbundling of legal service, the lawyer and client work together to allocate the division of tasks. This allocation depends both on the demands of the particular case as well as on the needs and potential talents of the client. The unbundled client specifically contracts for:1. The extent of services provided by the lawyer.
2. The depth of services provided by the lawyer.
3. Communication and decision control between lawyer and client during the unbundled engagement.
The concept of discrete task representation is not new to clients. Corporations hire in-house counsel to handle part of the job and to manage which services will be purchased from other lawyers and on what terms. High-income individuals know that it makes sense to use different lawyers for different tasks and to manage the lawyers' time effectively by having nonlawyers (accountants, business managers, personal assistants) do a good deal of the legwork. Even poor people unbundle when they pick up a preprinted form from a community legal services office.
Today's clients are more active, more experienced with service providers, more questioning, and more demanding in their quest to control the purchase and supervision of legal services. Unbundling meets the needs of this new breed of client. In contrast to the traditional attitude that client anxiety is somehow reduced by lack of information and attention, unbundling empowers the client. The client is the architect of the scope and tenor of the relationship. The unbundled client is the one who decides how the case is to be managed and what role, if any, the lawyer will play. Even more novel, the lawyer not only agrees to this shift of power but invites the public to enter the office on that basis.
Benefits to Clients
It is important to know and understand the benefits of unbundling so you can advise clients about unbundling. This understanding may also prompt you to add discrete-task services to your present practice.
Unbundling saves money. Unbundling addresses the barrier of high lawyer fees in a number of ways:
- No high retainers. Because clients are in charge of the amount of legal work you perform, they pay as they go. Many unbundling lawyers do not charge any deposit with the understanding that their biggest risk will be losing a few hours of work. When deposits or retainers are requested, they are only for the work specified.
- Total bills are more affordable. Less work means lower fees. The lawyer's hourly rate may not differ in discrete-task representation, but the cost to the client will be more controlled and generally far less. Since clients are bearing more (if not most) of the total load, you will be doing less work. This should allow clients to start using your services without the overwhelming fear of being stuck with an unpayable bill at the end.
- Focus is on top-priority tasks. By limiting your scope, you can concentrate on the client's most pressing needs. This should increase your efficiency for the tasks undertaken and reduce the costs to your clients.
Clients have more control. Probably the most fascinating finding of the 1993 ABA Study on Self-Representation is that more than 50 percent of the self-representers could afford at least some form of legal representation. Still, they chose to go it alone. Why? Because they had a need and desire for control over their own lives.
Control over the process. The nature of unbundling is such that both lawyer and client agree that "Client is in charge of the process." This explicit definition of the client-lawyer relationship determines the power balance and sets the parameters for the roles and expectations of both client and lawyer as to who is in charge.
Mediation has contributed to unbundling by giving clients with legal problems a taste of controlling their own process for resolution. We all bridle at being dependent or powerless, and unbundling supports the desire of clients to be treated like adults by the lawyers they choose to work with. This control over the process is seen in a number of different ways:
- The client decides what needs to be done to solve the presenting problem.
- The client decides whether the lawyer will be involved at all.
- The client determines the allocation of work between client and lawyer.
- The client decides whether the lawyer will actively monitor the situation or wait for the client to reinitiate contact.
Control over choices. By remaining on the firing line, unbundled clients must face the same types of challenging decisions that you face when providing full-service representation. Should I write a letter or have a personal meeting? Should I serve the summons or request the other side to pick it up? Should I give in on five smaller issues in order to get a bit more on the big issue?
Making these choices is the art of lawyering. They involve case strategy and ultimate case decisions. When they are handling their own cases, unbundled clients are confronted with these problems directly. As each issue arises, the client can choose whether or not to take advantage of your training, experience, and just plain good judgment.
Keeping lawyers out of the way. In addition to wanting to lower costs and keep control, many unbundlers want to reduce lawyer involvement because they truly believe that it does more harm than good-at any price! Whether stemming from a negative personal experience or the antilawyer atmosphere reflected in lawyer jokes, large segments of society believe that lawyers just make a bad situation worse by inflaming emotions, churning conflict, or being insensitive to the relationships and business-driven nuances that are often both the root causes of and the bases for solving disputes. By serving as unbundled managers of dispute resolution, discrete-task lawyers can inform clients about options and serve as buffers to the court resolution process that the public universally decries as not meeting their needs.
Benefits to Lawyers
The legal profession can certainly benefit from improving its customer-centered orientation. The profession is beginning to recognize its vulnerability in the marketplace as clients are increasingly self-representing, turning to nonlawyer providers, or just living with a recognized legal need. Marketing courses for lawyers are the current rage, primarily because legal consumers (our clients) are learning from their experience as consumers of other products and services to expect disclosure of relevant "sales information" and friendly client-oriented service. Unbundling can benefit you at the same time that you are offering this improved service to your clients.
Increase your market share. The benefit of requiring no or low deposits is that the public is more willing to utilize lawyers. Many people who are doing without lawyers can afford and are willing to pay limited fees for reduced service.1 Most people know that it is in their self-interest to use lawyers, but they can't come up with the typical retainer. Then there are those people who could afford some representation but choose instead to try it themselves or just endure. However, there are many people who are willing to give lawyers a limited try. If these new clients are satisfied with the result, they will most likely use their lawyer again on the same case or to solve other problems, and will recommend that lawyer to others.
You don't need to reduce your hourly rate. Unbundling should not be confused with a reduced hourly rate. The fee arrangement can be "win-win" for both you and your client. You charge, and clients generally expect to pay, a customary hourly rate for the limited services provided. (Actually, some lawyers providing unbundled services may choose to offer such services at a higher than normal hourly rate based on a value billing concept, due to the malpractice risks.) However, the client pays significant lower overall fees.
Your bills get paid. Another advantage of unbundling is that smaller bills tend to get paid. Because bills do not skyrocket and your work is better understood and appreciated by clients (who are actually making informed decisions about which tasks you will perform and how much time will be billed), accounts receivable do not get out of control. Satisfied clients also generally pay quickly so you have fewer outstanding and unpaid fees.
Increase your personal satisfaction. Attorneys who sign on for the discrete-task model may also find greater personal satisfaction and congruence with their personal values than in the bloodletting of a courtroom. Your faith in the creative opportunities, efficiency, and cost benefits of unbundling can often inspire a client to persevere through a bumpy and painful process. That inspiration and belief alone may help clients achieve satisfactory resolution.
1. Bruce D. Sales, Connie Beck, Richard K. Haan, Self Representation in Divorce Cases (ABA Committee on the Delivery of Legal Services, 1993).
Is Unbundling Right for You?
The first step in unbundling is to give yourself an unbundling mindset quiz to see if it is right for you. Check all that apply:
- I want to spend more time in direct contact with coients and less time interacting with lawyers on the opposing side or the court system. ____
- I am able to give up control of doing the legal work myself and am comfortable helping clients do most of the work on their own. ____
- I am flexible about changing roles with clients and even adapting to new roles requested by the client (that do not conflict with my own professional or personal ethical boundaries). ____
- I am willing to accept payment for current work only and begin an engagement without an advance retainer or deposit. ____
- I like helping people make better decisions. ____
- I like having people get help they can less afford. ____
- I am able to handle having clients listen to my sound advice and then ignore it. I will still be willing to help them pick up the pieces and try to make lemonade out of lemons. ____
- I like to teach clients skills and concepts that will make their cases go better-and maybe even improve their lives. ____
- I like to prevent problems from ever ripening into conflict. ____
- I want to reduce my billing load and work more on a cash-and-carry basis. ____
- I want to have more control over my life by not being subject to canceling vacations or working nights and weekends. ____
- I am willing to try new approaches that are different from the way I currently practice or even different from the way I was trained. ____
- I like working with people who like to shop for bargains. ____
- I am willing to work with people who may have a high mistrust of or disregard for lawyers. ____
- I am willing to work with people who have so messed up their case that the best that can happen is cutting a loss rather than gaining a win. ____
- I can provide clients with space in my office so that they can do their own background reading, watch helpful videos, do their own legal research, prepare their own work, or just relax and calm down. ____
- I want to help people maximize their lives and reduce their legal risks in areas far removed from the presenting problem that brought them into the office. ____
- I want to meet and learn from other innovative and caring lawyers who share a common set of goals and professional commitments with me. ____
It is not necessary for you to check off all, or even most, of these statements. If you are drawn to the message conveyed by the mindset quiz, with a little prep you can start unbundling this week. If you can legally practice law, you can unbundle your services-if you want to. Unbundling is the practice of law with a fresh consumer-oriented approach. The only requirements to unbundling are a valid license to practice in the jurisdiction in which you provide legal services, and a willingness to modify your approach to both effectively and competently deliver services and to protect yourself from some of the dangers of making this modification. While there are numerous tips, warnings, and practice forms to help you, the key to unbundling is truly your mindset. Belief in yourself and your product (in that order) coupled with financial, time, and emotional commitment is a recipe for success.
Limited Scope Client-Lawyer Agreement
This Agreement is made between Attorney and Client as designated at the end of this agreement.1. Nature of Agreement. This Agreement describes the relationship between the Attorney and Client. Specifically, this Agreement defines:
a. The general nature of Client's case.
b. The responsibilities and control that Client agrees to retain over the case.
c. The services that Client seeks from Attorney in his/her capacity as attorney at law.
d. The limits of Attorney's responsibilities.
e. The immunity from civil liability granted to the Attorney for services not provided by Attorney.
f. Methods to resolve disputes between Attorney and Client.
g. The method of payment by Client for services rendered by Attorney.
2. Nature of Case. The Client is requesting services from Attorney in the following matter: ________________________________________________
3. Client Responsibilities and Control. The Client intends to handle his/her own case and understands that he/she will remain in control of the case and be responsible for all decisions made in the course of the case.
The Client agrees to:
a. Cooperate with Attorney or Attorney's office by complying with all reasonable requests for information in connection with the matter for which Client is requesting services.
b. Keep Attorney or Attorney's office advised of Client's concerns and any information that is pertinent to Client's case.
c. Provide Attorney with copies of all correspondence to and from Client relevant to the case.
d. Keep all documents related to the case in a file for review by Attorney.
4. Services Sought by Client. The Client seeks the following services from Attorney (please indicate services sought with check mark):___ 1. Legal advice-office visits, telephone calls, fax, mail, e-mail.
___ 2. Advice about availability of alternative means to resolving the dispute, including mediation and arbitration.
___ 3. Evaluation of Client's self-diagnosis of the case and advising Client about legal rights.
___ 4. Guidance and procedural information for filing or serving documents.
___ 5. Review correspondence and court documents.
___ 6. Prepare and/or suggest documents to be prepared.
___ 7. Factual investigation: contacting witnesses, public record searches, in-depth interview of Client.
___ 8. Legal research and analysis.
___ 9. Discovery: interrogatories, depositions, requests for document production.
___ 10. Planning for negotiations, including simulated role playing with Client.
___ 11. Planning for court appearances made by Client, including simulated role playing with Client.
___ 12. Backup and trouble shooting during the trial.
___ 13. Referring Client to other counsel, expert, or professional.
___ 14. Counseling Client about an appeal.
___ 15. Procedural assistance with an appeal and assisting with substantive legal argumentation in an appeal.
___ 16. Provide preventive planning and/or schedule legal check-ups.
___ 17. Other: ______________________________________
5. Attorney's Responsibilities. The Attorney shall exercise due professional care and observe strict confidentiality in providing the services identified by a check mark in Paragraph 4 above. In providing those services, Attorney shall not:a. Represent, speak for, appear for, or sign papers on the Client's behalf.
b. Provide services in Paragraph 4 that are not identified by a check mark.
c. Make decisions for Client about any aspect of the case.
6. Method and Payment for Services.a. Hourly fee. The current hourly fee charged by Attorney for services under this agreement is as follows:
Senior Partner: $________
Junior Partner: $________
Document Preparer: $________
Unless a different fee arrangement is specified in clauses (b) or (c) of this Paragraph, the hourly fee shall be payable at the time of the service.
b. Payment from Retainer. The Client shall have the option of setting up a deposit fund with Attorney, out of which payment for services may be made as they occur. If a retainer is established under this clause, Attorney shall mail Client a billing statement summarizing the type of services performed, the costs and expenses incurred, and the current balance in the retainer after the appropriate deductions have been made. Client may optionally replenish the retainer or continue to draw the fund down as additional services are delivered. If the retainer becomes depleted, Client shall pay for additional services as provided in clauses (a) or (c) of this Paragraph.
c. Flat Rate Charges. The Attorney may optionally agree to provide one or more of the services described in Paragraph 4 for a flat rate. Any such agreement shall be set out in writing, dated, signed by both Attorney and Client, and attached to this Agreement.
d. Attorney Fees. Should it be necessary to institute any legal action for the enforcement of this Agreement, the prevailing party shall be entitled to receive all court costs and reasonable attorney fees incurred in such action from the other party.
7. Resolving Disputes Between Client and Attorney.
Notice and Negotiation. If any dispute between Client and Attorney arises under this Agreement, both Attorney and Client agree to meet and confer within ten (10) days of written notice by either Client or Attorney that the dispute exists. The purpose of this meeting and conference will be to negotiate a solution short of further dispute resolution proceedings.
Mediation. If the dispute is not resolved through negotiation, Client and Attorney shall attempt, within fifteen (15) days of failed negotiations, to agree on a neutral mediator whose role will be to facilitate further negotiations within fifteen (15) days. If Attorney and Client cannot agree on a neutral mediator, they shall request that the local bar association select a mediator. The mediation shall occur within fifteen (15) days after the mediator is selected. The Attorney and Client shall share the costs of mediation, provided that payment of the costs and any attorney fees may also be mediated.
Arbitration. If mediation fails to produce a full settlement of the dispute satisfactory to both Client and Attorney, Client and Attorney agree to submit to binding arbitration under the rules of the local bar association. This arbitration must take place within sixty (60) days of the failure of mediation. Costs and attorney fees for arbitration and prior mediation may be awarded to the prevailing party.
8. Amendments and Additional Services. This written Agreement governs the entire relationship between Client and Attorney. All amendments shall be in writing and attached to this Agreement. If Client wishes to obtain additional services from Attorney as defined in Paragraph 4, a photocopy of Paragraph 4 that clearly denotes which extra services are to be provided, signed and dated by both Attorney and Client and attached to this Agreement, shall qualify as an amendment.
9. Civil Immunity for Counsel. Client hereby waives any right to prosecute a claim of professional negligence against Attorney for any service not specifically set forth by a check mark or actually undertaken by Attorney in Paragraph 4 of this Agreement. The Client grants to Attorney complete immunity from civil liability arising from all aspects of the case not specifically undertaken by the Attorney. Client acknowledges that many attorneys will not offer limited scope representation due to the fear of malpractice claims by clients who later find or believe that the limited scope representation was not sufficient to properly protect the client. The Client acknowledges that retaining an attorney for limited scope representation is a consumer choice by the Client based on Client's desire to lower fees and maintain client control and Client's belief that the Client can competently handle all issues and tasks not specifically undertaken by Attorney. Client agrees to bear the full risk of any damage caused to the Client due to the Client handling the matter without specifically requested legal services from the Attorney. Such waiver of malpractice claims does not extend to those services that the Attorney undertakes to render on behalf of the Client as instructed by the Client. The Attorney represents that the law firm carries professional liability insurance as required by the state bar.
10. Statement of Client's Understanding. I have carefully read this Agreement and believe that I understand all of its provisions. I signify my agreement with the following statements by initialing each one:___ I have accurately described the nature of my case in Paragraph 2.
___ I will remain in control of my case and assume responsibility for my case as described in Paragraph 3.
___ The services that I want Attorney to perform in my case are identified by check marks in Paragraph 4. I take responsibility for all other aspects of my case.
___ I accept the limitations on Attorney's responsibilities identified in Paragraph 5 and understand that if I make mistakes in handling my own case, I have granted the Attorney immunity from being sued for professional malpractice. This means that I cannot sue and/or recover from the Attorney regardless of the damage I might suffer.
___ I shall pay Attorney for services rendered as described in Paragraph 6.
___ I will resolve any disputes I have with Attorney under this Agreement in the manner described in Paragraph 7.
___ I understand that any amendments to this Agreement shall be in writing, as described in Paragraph 8.
___ I acknowledge that I have been advised by Attorney thatI have the right to consult another independent Attorney to review this Agreement and to advise me on my rights as a Client before I sign this Agreement.
Forrest S. Mosten lives and practices in Los Angeles and is president of Mosten Mediation Centers, with offices throughout the United States. His books include Unbundling Legal Services (2000) and The Complete Guide to Mediation (1997), both published by the American Bar Association (to order, call the ABA Service Center at 800/285-2221); Operating a Profitable Mediation Practice (1998, Mosten Mediate); and Mediation Career Guide (2001, Jossey-Bass). He can be reached at www.MostenMediation.com. This article is based on chapter 1 of Unbundling Legal Services, American Bar Association, © 2000. Reprinted by permission.