Unbundling: The bridge between going it alone and full representation

Volume 40 Number 3

By

William Hornsby is staff counsel for the ABA Division for Legal Services.

Pro se litigants have to learn what they are doing from somewhere. They have to learn which forms to use, how to fill them out and how to file them. They have to learn how to navigate the maze of the courthouse. They need to know the strategies that are most likely to result in a favorable outcome. Many turn to online resources, law libraries or courthouse self-help centers. But why not turn to a lawyer to get just the information and advice they need? That’s where unbundling comes in—an option for people to do it themselves, but to turn to a lawyer for an affordable alternative as necessary.

We see unbundling in pro bono opportunities, such as the limited-scope representation provided to pro se litigants through the lawyer-day-in-court program or the consultations provided through a “Tuesday night at the bar” program. We see unbundling when a lawyer volunteers to staff a self-help center desk in the courthouse or answer a pro se’s questions on a hotline.

Outside of the pro bono setting, unbundling is integral to group and prepaid legal services that provide telephone consultations and advice, and to online “question and answer” websites. More and more, we are seeing unbundling being incorporated into innovative law practices, such as those being established by newly admitted practitioners who participate in legal incubators.

Unbundling earns broad support

The economics of unbundling are unrivaled among the tools designed to expand greater access to those of moderate income. Unlike a low bono or modest means program, where the lawyer simply reduces his or her rates, an unbundled service enables the lawyer to receive full compensation at the same time the client pays a lesser, more affordable overall legal fee. In other words, a lawyer who charges $250 per hour can provide an unbundled service at that same rate, but the client will pay less than for a full-service option because the lawyer is spending less time on the case.

In 2013, the ABA House of Delegates unanimously passed a resolution supporting limited-scope representation and encouraging stakeholders, including bar associations, to help the public become better aware of this option. The resolution stemmed in part from a survey conducted by the ABA Standing Committee on the Delivery of Legal Services in 2010, asking a national sample of the public how familiar they were with unbundling. Seventy percent said they were not at all familiar with the concept, and only 6 percent reported they were very familiar with it.

When asked if they would like to talk to a lawyer about an unbundling option, about two-thirds said they would. The same number reported that they would be more likely to hire a lawyer who provides an unbundling option.

An important role for bar associations

So, how exactly can bar associations advance unbundling in order to expand access to those who may otherwise self-represent? Here are some ideas that bars have implemented or considered:

  1. Petition the courts to amend the rules of professional conduct and the rules of procedure so that lawyers are clear about their responsibilities and the processes of unbundling. This is no small task, but the ABA publishes a white paper that gathers the existing state rules so that states do not need to reinvent this wheel.

  2. Provide CLE programming to help lawyers understand not only their obligations, but also the potential of unbundling for both pro bono and practice representation. The Colorado Bar Association Modest Means Task Force has barnstormed the state to discuss unbundling among the full range of modest means delivery tools. The New York State Bar Association recently joined with the courts to provide CLE programming featuring national speakers and covering ethics, access and opportunities. The program was attended by judges, court personnel, law school faculty and practitioners.

  3. Create an association section on unbundling, regularly bringing together practitioners who can share their experiences with one another.

  4. Maintain a directory of unbundling lawyers and promote it throughout the courts, the libraries, other community outlets and faith-based institutions—anywhere that those of modest means may be seeking help.

  5. Do outreach to the law schools, arranging to bring in unbundling lawyers to share their experience with future practitioners.

  6. Make certain that unbundling is a topic examined within legal incubators. Newly admitted practitioners who are creating innovative practices will never have a better opportunity to experiment with unbundling and share their experiences with colleagues.

(Note: For additional information regarding how some bar associations are exploring or promoting unbundling, see "Old problem, new solutions: Improving access to justice through innovation, collaboration," also in this issue.)

Finally, share your thoughts with the ABA Standing Committee on the Delivery of Legal Services. The committee is pursuing the implementation of the ABA resolution to advance this method of improving access and would appreciate hearing more from the bars around the country.

 

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