July/August 2003  Volume 29, Issue 5
July/August 2003 Issue
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What's the Big Deal About Unbundling
by Forrest S. Mosten
Allocating tasks between a lawyer and a client is a means to increase access to legal services-and to boost the client's power. It can also improve profitability and satisfaction for the lawyer. Here's how, and why, it works.
 

WHAT IS UNBUNDLING? It's a way to meet the needs of a new breed of clients -- those who want control over the costs, processes and choices involved in their legal services. Specifically, unbundling means that the client is in charge of selecting one or several discrete lawyering tasks contained within the full-service package.

In the traditional full-service package, the client engages the lawyer to perform any and all of the following tasks, meeting the demands of the client's particular case:

  • Advising the client
  • Doing legal research
  • Gathering facts
  • Conducting discovery
  • Conducting negotiations
  • Drafting documents
  • Representing the client in court

With the unbundling of services, the lawyer and client work together to allocate the division of these tasks. This allocation depends on the given demands of the case as well as the needs and potential talents of the client.

The unbundled client specifically contracts for the extent of services provided by the lawyer; the depth of services provided by the lawyer; and the communication and decision control between lawyer and client during the engagement. If that sounds radical to you, you might be surprised to learn that you already unbundle in your law practice.

Selling Discrete Services: Lawyers Do It Every Day
There are very few lawyers who provide the complete package of services to all their clients. Most of us sell discrete services on a fee-for-service basis or provide discrete services for free. Consider the following:

  • Do you ever provide an initial consultation on a new matter, and either the client decides to go no further or ends up hiring another lawyer (or non-lawyer) to do the work?
  • Do you ever prepare a document, such as a letter, real estate deed or power of attorney, and do nothing else relating to that matter?
  • Do people ever come to see you just to get a second opinion on how their cases are being handled by another lawyer, and then they stay with their current lawyer, go with a different practitioner or simply decide to go it alone?
  • Do people ever call you with an isolated legal question and, once you give your answer, you never hear from that person again?

All these common activities are examples of discrete-task services that you already perform. The concept of discrete-task representation is not unknown to clients either.

Corporations hire in-house counsel to handle part of the job, manage services that will be purchased from other lawyers and address the 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 non-lawyers (accountants, business managers, personal assistants) do a good deal of the legwork. And lower-income people unbundle, albeit involuntarily, when they pick up just a form from a community legal services office (since legal aid budgets preclude full-service representation for these potential clients).

Unbundling, then, is not new. So what's the big deal? The fact that lawyers as well as consumers are generally unaware of its potential both to increase legal access and improve lawyer profitability for middle-income people.

Who's the Architect? Shifting the Power Balance to Clients
In her extended study of the market for unbundled legal services, Unbundling Dispute Resolution Services: The Missing Link in Access to Justice (1998), Suzanne Burn points out that for at least 20 years, the debate on access to civil justice in England and Wales focused on issues important to lawyers, judges and politicians. The missing element in the debate was what clients actually want and can afford.

It is no wonder. Law school focuses on appellate cases that only result when one party appeals after losing a trial. Using the historical, and confrontational, Socratic method, the personal needs and concerns of individual clients are subordinated to broader legal principles and inductive reasoning. Until clinical education became part of legal education in the 1970s, the word "client" was rarely uttered within the law school classroom, with the expectation that young lawyers would learn all they needed to know about clients upon entering law practice as apprentices.

However, in large firms, young lawyers may not even see a client for years. And in many smaller firms, the models of client interaction are offered by senior lawyers who either were trained in big firms or started their careers in a different era, an era when clients were less consumer-trained and the "brotherhood" of lawyering was steeped in lawyer-centered traditions.
It is true that there is generally an imbalance of expert power between any service provider and customer. Electricians know more about installing wires than homeowners do. Physical trainers know more about exercise than the athletes who grunt to the trainers' instructions. Yet the legal profession is at the top of the list in successfully creating a power structure to keep vital information from clients and hold on to the inherent power imbalance that expertise creates. Avron Sheer (in "Lawyers and Clients: The First Meeting," Modern Law Review, 1986) describes the working model as that of a "'High Priest' of law handing down pronouncements to grateful recipients."

Many clients, however, are no longer willing to be treated like children. Today, clients are more active, more educated in the art of "clienthood," more inquisitive 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 a lack of information and attention, unbundling empowers the client in an unbundled case. The client is the architect of the scope and tenor of the relationship -- 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 power shift but invites the public to enter the office on that basis.

Is Unbundling Right for You? Steps and Motivations
How does it work? Suzanne Burn lists the following steps as typical of an unbundled client-lawyer relationship:

  • The lawyer offers a menu of services.
  • The client sets the budget and selects which services the lawyer will perform.
  • The client negotiates terms of payment, as per task or set fee.
  • The client and lawyer agree on which of them will be responsible for overall strategy and case management.
  • The client and lawyer work together, sharing in decision making, toward resolution of the dispute.

Think of it as the difference between a prix fixe meal and an a la carte buffet. (See the "Menu of Legal Services" on page 39.)

As you can see from the metaphorical menu, the full-service package includes the soup-to-nuts inventory of legal services. Once retained, the full-service lawyer is responsible for using good faith professional judgment on behalf of the client to strategize what services are necessary to accomplish the client's goals.

Ethical and malpractice constructs are built on the full-service package. In return for the discretion to be in charge of case strategy, there is an implicit expectation that a lawyer will do everything necessary to accomplish client goals regardless of the client's financial limitations -- or so suggest the malpractice laws. Every lawyer is expected to manage the perfect case plan. Corners are not to be cut unless they do not affect the presentation of the client's rights at trial. It is in this mythical framework of perfection that the official autopsy called "malpractice litigation" exhumes the cadaver and cynically searches for roads not taken as well as those stumbled upon.

In practice, though, few if any clients can afford perfect representation. Lawyers cut corners unilaterally and still more are cut with the agreement with the client. The full-service package in theory is therefore the amended-service package in reality. Yet this corner cutting does not prevent either the client or lawyer from wanting the full scope of services to be utilized. From the client's point of view, it does not really matter what the lawyer does (until the bills start coming). The bottom line is whether or not the lawyer gets the job done. A main feature of client motivation is to pass the buck to the lawyer. Pass the work -- pass the worry! The unbundling client's motivation -- to control costs and choices -- is a different matter altogether. It may produce a sea change in the legal profession.

If you are interesting in being part of the sea change, the first step is to take the "Unbundling Mind-set Quiz" on this page to see if unbundling is right for you. It is not necessary to check off all, or even most, of the statements. There is no unbundling "entrance exam." The purpose of the quiz is to determine if you are drawn to the message of unbundling. If you can legally practice law, you can unbundle your services -- if you want to. Unbundling is still the practice of law, albeit with a fresh, client-oriented approach.

The Benefits to Clients
Regardless of your initial view of this issue, it is important, as a practicing lawyer, to understand the benefits of unbundling for competently advising clients -- whether or not they choose to unbundle or you choose to add discrete-task services to your present practice.

Cost savings. Cost savings is probably the driving force leading to unbundling. The marketplace does provide a rough calibration between competence and cost. It is probably true that the more clients pay, the better the legal work. However, this is a luxury few people can afford. And, as the American Bar Association and corporate in-house programs are reporting, consumers do not want to pay any more than they have to for legal services. For companies, this means shopping for lawyers that will be more flexible in their delivery structure. Among middle-income individuals and small business owners, the bargain hunting is even more prevalent. Unbundling addresses the cost barriers of high lawyer fees in these ways:

  • High retainers are unnecessary. Because clients are in charge of the amount of legal work, they can pay as they go. Many unbundling lawyers do not charge deposits, with the understanding that the biggest risk will be losing a few hours of work. When the lawyer does charge a deposit or retainer, it is only for the work requested. Since an unbundling lawyer is not counsel of record in a court action, a retainer is not needed to protect the lawyer in a runaway case -- where even if the client owes money, the lawyer must keep working until the client consents otherwise, or the judge grants the lawyer's motion to withdraw. In unbundling, no payment, no more work.

  • Total bills are more affordable. Less work equals lower fees. The hourly rate may not differ in discrete-task representation, but the cost to the client will be more controlled and, generally, far less. Because clients are bearing more of the total tasks load, you will do less work. And lower overall fees can, in turn, increase lawyer use. Clients will be willing to "stick a toe in the water" and use a lawyer's services without the dread of being stuck with an unpayable bill at the end.

  • The lawyer focuses 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, as well as reduce the costs to clients.

Control over processes. In her unbundling training program for lawyers (sponsored by the Contra Costa Bar Association), M. Sue Talia describes the typical unbundled client as having the following personality traits:

  • Is resourceful
  • Is self-help oriented
  • Has a technical background
  • Is able to gather and organize information
  • Is able to do research in books or on the Internet

While more research is necessary to define the unbundler's personality, the need and desire for control over their lives seems to universally describe members of this consumer group. Essentially, unbundling gives them control in terms of process and choice.

The nature of unbundling is such that both lawyer and client explicitly agree, "The client is in charge of the process." This agreement on the nature of the relationship defines the power balance and sets the parameters for the roles and expectations of both client and lawyer regarding who is in charge and whose needs are paramount.

We all bridle at being dependent or powerless. Unbundling supports the desire for clients to be treated like adults by their lawyers. This process control works in a number of ways:

  • The client decides what needs to be done to solve the problem.
  • The client decides whether the lawyer will even be involved.
  • The client decides 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.

Moreover, when they are involved in this way, and on the firing line themselves, clients understand the pressures and problems of the case -- it remains their case and they are not permitted the luxury of dumping it solely on you and then abrogating responsibility. Unbundling clients actually sign up for this responsibility. And they appreciate lawyers who understand what they are going through, demonstrate that understanding with empathy and availability, and are flexible enough to work with them in ever-evolving patterns of task allocation and decision making.

Control over choices. By remaining on the firing line, unbundling clients are faced with challenging decisions similar to those you face when providing full-service representation. Should I write a letter or have a personal meeting? Should I serve the summons or request that the other side pick it up? Should I give in on five smaller issues to get a bit more on the big issue or just to reach finality?

Unbundling offers clients the opportunity to know about such necessary decision points firsthand. At the same time, when confronted with these decisions directly, unbundling clients will often want the help you can bring from your training, experience and just plain good judgment. Since client education and the availability of options are two selling points of unbundling, the essence of discrete-task coaching is for you to help the client explore alternatives on the decision-making spectrum. For example, I had a client who booked a session just to talk about timing the first offer in a residential home sale conflict involving major leaks. Would an offer be a sign of weakness? Should the offer come before the scheduling of a mediation? Should the offer be bifurcated between actual settlement terms and the settlement process?

You have probably had many such client consultations throughout your career. What makes it different in the unbundling context is that the client initiates the conversation as the result of challenges that arise in the client's handling of the case. Once the conversation is concluded and decisions are made, it is the client who implements the plan. Such control over getting the options and fully exploring them drives many clients to unbundling.

The Benefits to Lawyers
The legal profession can certainly benefit from increasing its client-centered orientation. Lawyers have begun to recognize their vulnerability in the marketplace, with clients increasingly self-representing, turning to non-lawyer providers or simply living with acknowledged legal needs. At the same time, our clients are learning from their experiences as consumers of other products and services to expect disclosure of relevant "sales information" and friendly, customer-oriented service. Unbundling provides several opportunities for lawyers in this regard.

Increasing your market share. The benefit resulting from no or low deposits is that the public is more willing to use lawyers. Many people who are doing without lawyers can afford, and are willing to pay, limited fees for reduced service. Most people know that it is in their self-interest to use lawyers -- except they cannot afford the necessary starting fee. Many people will still choose not to pay a few hundred dollars and will still try it themselves -- or just endure. But when the cost is lower, many more will at least give lawyers a limited try. And, if they are satisfied with the result, they will use the lawyer again and again -- and will recommend the lawyer to others.

Maintaining your hourly rates. Unbundling need not be confused with a reduced hourly rate. The fee arrangement can be win-win for both you and your clients. The client pays significantly lower overall fees. You, however, can charge (and clients generally expect to pay) a customary hourly rate for the limited services provided. Actually, some lawyers may choose to offer unbundled services at a higher than normal rate based on a value-billing concept, owing to the malpractice risks.

Improving your receivables. Another advantage of unbundling is that satisfied clients pay their bills. And satisfied clients generally pay faster so you need to write off fewer fees. Because bills do not skyrocket as fast and your work is better understood and appreciated by clients (who are making informed decisions about which tasks you perform and how much time will be billed), accounts receivable stay more controlled.

Increasing your personal satisfaction. Lawyers who sign on for the discrete-task model may also find greater satisfaction and congruence with their personal values, especially when you compare unbundling with the bloodletting of a courtroom. Your belief in the creative opportunities, efficiencies and cost benefits of unbundling can often steady and inspire a client to persevere through a bumpy, painful process. That inspiration alone may help clients achieve satisfactory resolution. And that, in turn, is a very satisfactory experience for you, the lawyer.


Forrest S. Mosten ( mosten@mediate.com) is a certified family law specialist and mediator in Los Angeles, teaches mediation at the UCLA School of Law and trains lawyers worldwide. He is widely recognized as the "father of unbundling" for his pioneering work in this method of expanding legal access. He is the author of Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte (ABA, 2000), The Complete Guide to Mediation (ABA, 1997) and Mediation Career Guide (Jossey-Bass, 2001).


This article is excerpted and adapted, with permission, from Chapter 1 of Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte by Forrest S. Mosten. © 2000 ABA Law Practice Management Section.