During the past ten years, many industries have begun unbundling their services. Airlines, wireless providers, newspapers, the music industry, and personal and financial services have all found ways to unbundle services and rebundle them to create new or improved markets. This approach has helped them adapt to changes in our global economy and address the way that consumers now exercise their purchasing power. The legal profession could take a few lessons from their experiences. Law firms must find ways to adapt to the changing legal marketplace by integrating unbundling as a form of legal service delivery.
What’s on the Menu?
Unbundling is a method of legal service delivery in which the lawyer breaks down the tasks associated with a client’s legal matter and provides representation only pertaining to a clearly defined portion of the client’s legal needs. The client accepts responsibility for doing the footwork for the remainder of the legal matter until reaching the desired resolution. Unbundling is also referred to as limited-scope services, a la carte legal services, discrete task representation, or disaggregated legal services.
Revised in 2002, ABA Model Rule of Professional Conduct 1.2(c) formally allows for the unbundling of legal services: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Rule1.2(c) has been adopted verbatim or with some modification by 41 jurisdictions (including the District of Columbia); ten jurisdictions have not adopted it. A full list of state bars that have adopted this rule, along with links to the texts of these state rules, can be found at the ABA Standing Committee on the Delivery of Legal Services’ Pro Se/Unbundling Resource Center. Some states have modified Rule 1.2(c) to limit unbundling only to noncriminal law matters.
Why is it important that lawyers learn how to integrate unbundling into their existing full-service practices? There is a growing market need for accessible unbundled legal services, particularly those delivered online. One only has to look at the millions of individuals claimed to be served annually by nonlawyer legal services companies, such as LegalZoom and Rocket Lawyer, in order to see that legal professionals could tap into this market by providing more customized, quality unbundled services to the public. Adding limited-scope services to a law practice has the potential to provide a new source of client revenue for a law firm. More importantly, unbundling provides a significant benefit to the public.
The ABA and most state bars acknowledge that unbundling legal services is one important key to chip away at our nation’s problem with access to justice. As our court systems continue to be overburdened with pro se individuals, expecting the legal profession to provide full-service representation for each of them is not realistic. The unfortunate truth is that, in this down economy, many individuals who need legal assistance are either postponing what they can, are going into the courthouse alone without any guidance, or are going online to cut and paste together their own legal documents or turning to nonlawyer legal service companies. Increased adoption of unbundling by law firms provides the public with an alternative form of legal service delivery, increasing public access to justice.
Frequently unbundled legal services include:
- Advising on court procedures and courtroom behavior
- Coaching on strategy or role playing
- Collaborative lawyering
- Conducting legal research
- Document review
- Drafting contracts and agreements
- Drafting pleadings, briefs, declarations, or orders
- Making limited appearances
- Online dispute resolution
- Organizing discovery materials
- Preparing exhibits
- Providing legal guidance or opinions
The practice of unbundling legal services comes with its own set of rules and best practices for law firms to follow. One of the most important components for unbundling is clearly defining the scope of representation for the client. Rule 1.2(c) requires that “the client gives informed consent” to the limited scope. This may be handled with a well-drafted limited-scope engagement agreement. Limited-scope agreements should clearly define the nature of the services being provided by the firm to the client. If the firm is using technology to deliver unbundled services online, the agreement needs to explain the use of the technology and how the client can expect to receive services in digital format and communicate with the firm online.
It may be possible for the attorney to draft a standard limited-scope agreement for each type of unbundling service that the firm provides. However, in most cases, it may be necessary for the attorney to tweak the agreement on a case-by-case basis to ensure that the scope is appropriately limited to the client’s unique legal needs. In addition, to avoid misleading the client, the agreement should be written in plain language rather than legalese.
After the client has signed the limited-scope agreement, the firm must be careful to adhere to the agreed-on scope of the services. Even if it may be tempting to start working on the next step in the client’s case, the attorney should not extend the firm’s work into the tasks that it agreed would be the client’s responsibility. If the scope of the original limited-services agreement changes, the firm must discuss this with the client first and put the terms for the expanded representation, whether full-service or additional unbundled work, into a new agreement so that the change in scope is clear and on record. At the end of the representation, a termination letter should be sent to the client confirming the lawyer’s completion of work on the matter, along with another copy of the list of items the client will be responsible for completing on his or her own.
Client education is key to responsible unbundling. The law firm should provide the client with a clear explanation of what full-service representation of the matter would entail so that the client may understand the difference between full and limited representation as well as understand his or her responsibilities under the agreement. Checklists may help with this process. A thorough client intake process is also necessary for the lawyer to understand the client’s legal needs, if there are any collateral issues that may arise, and ultimately whether or not it is appropriate under the client’s individual circumstances to provide limited-scope representation or whether the client’s situation requires full service.
What’s off the Menu?
Clearly, for some legal matters, especially in cases involving certain criminal matters or complex litigation, it is not appropriate to unbundle because the client would best be served with ongoing and continuous representation by a lawyer. The lawyer should also not attempt to unbundle legal matters about which the lawyer does not have any experience or the necessary level of competency to provide the client with quality assistance. Unbundling does not mean that the quality of services provided is any less than it would be during full representation. The lawyer must make the decision of whether to unbundle for a client on a case-by-case basis.
The following factors may assist the lawyer in determining whether a matter may be unbundled or if it requires full-service representation:
- How complex is the matter? Will it involve much litigation? Is it a clear-cut case? Has the client worked previously with another attorney on the matter before seeking limited-scope assistance?
- How urgent is the matter? Is the client contacting the lawyer in a last-minute emergency? Will the law firm be required to complete the work within a feasible time frame without the risk of providing services that are not competent?
- Will this client be able to handle the remainder of the case following the firm’s instructions and guidance? Does the client have the necessary level of education, experience, or sophistication?
- Would it be in the client’s best interests in this particular circumstance if the representation were consistent from start to finish?
- Does the client take instruction well?
- Is the client going to be comfortable communicating with the firm using the methods that the firm has set up for limited-scope cases, such as a virtual law office or web conferencing, rather than in-person office visits?
- Will the client consent to the limited representation?
Once the lawyer has decided the matter may be unbundled, the firm may create procedures for handling specific unbundled matters, which will streamline the process of delivering these services. For example, the checklists and educational materials may be created ahead of time, as well as the use of online forms of delivery, including document automation and assembly tools and client management systems.
Unbundling is also an ideal opportunity to provide alternative fee arrangements to clients—in particular “fixed-fee” or “value” billing. Payment plans that spread out the cost of the unbundled services also may be popular with clients and serve as another marketing point for unbundling services. Fixed-fee billing may help clients budget for their legal services and understand the limited scope of the arrangement. There is a difference between value billing and fixed fees, but both may be implemented in some form in an unbundled practice. As many traditional firms reconsider their existing billing arrangements to meet the demands of today’s e-commerce empowered clients, it may be useful to consider unbundling as another area for restructuring the firm’s overall billing and service delivery offerings.
Ghostwriting and limited appearances are two forms of unbundling that may require additional consideration by the lawyer depending on what his or her state has proscribed regarding these services. “Ghostwriting” is the term used to describe a situation whereby a lawyer drafts a legal document such as a complaint or response for a client to use in the course of a case, but the lawyer does not sign his or her name to the legal document or make the court aware that the document was drafted by a licensed lawyer rather than the pro se litigant. In 2007 the ABA published Formal Opinion 07-446, which permits ghostwriting. This opinion states that a lawyer may provide limited assistance to a pro se litigant by helping him or her prepare written materials without disclosing the lawyer’s involvement in the preparation to the court. In a case where it would constitute fraud or be dishonest conduct on the part of the pro se litigant to hide the limited-scope assistance from the court, ghostwriting might constitute the lawyer’s violation of other Rules of Professional Conduct, such as Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). States have addressed ghostwriting in different ways. Many states have specific rules regarding the practice of ghostwriting, and an attorney must be aware of how the local court where the client will be filing the document will handle ghostwritten documents.
Limited appearances before the court are one of the significant needs of self-help individuals that are not easily overcome in the same way that they may find unbundled assistance to draft legal documents or obtain legal guidance. Pro se litigants may be so intimidated by the court, the unfamiliar procedures, the complexity of the rules, or for any number of other reasons, including cultural or language barriers, that they may not be able to adequately articulate their positions at hearings or trials. Limited appearances are an area of unbundling considered by some to be a high-risk practice. When a lawyer enters an appearance on behalf of a client for the purpose of full-service representation, he or she is listed as the responsible party on the client’s case who receives notices of the status and moves the process forward. To withdraw from representation, the lawyer must file a motion to withdraw and go through a hearing to obtain permission from the court. Limited appearances could cause confusion with the court and opposing counsel concerning who is the responsible party for the case and for which portion of the case is the client represented.
Because of this risk of confusion, some states have added guidance to their versions of Model Rule 1.2(c) as it pertains to limited appearances. Most of this guidance merely provides clarification to the lawyer about how to file the appearance, how to withdraw, and how the other parties and the courts must be notified of the limited appearance. Clear procedures for this process are lacking in most states’ rules and may depend more on the lawyer’s local court procedures. If your law firm is considering adding limited appearances to the list of unbundled offerings, consult not only with your state’s rules but also with the procedures at the local courthouse where you would be providing this form of limited-scope assistance for clients.
By following best practices for unbundling and paying attention to the different state rules and regulations regarding different forms of limited-scope assistance, unbundled services may easily be added to most law firms. Which unbundled services may be added will depend on the firm’s practice areas and the needs of its client base. Unbundled offerings may also help a firm restructure other areas of the practice, including billing arrangements and technology used for practice management and for client delivery of legal services. Accordingly, not only will greater adoption of unbundling help increase accessibility of legal services for the public, but it will also help law firms adapt to changes in the legal marketplace that require the increased efficiency and flexibility that come with adding unbundled services to a firm’s full-service offerings.