Vol. 43, No. 3

Unbundled legal services: Some recent developments across the country

by Marilyn Cavicchia

When it comes to increasing access to civil legal services, unbundling—the idea that a lawyer will handle certain aspects of a legal matter but not the whole case—is not a new concept.

But it may be one that’s gaining some traction, as some bar associations incorporate it into their lawyer referral services (or add it as a similar, but different mechanism), some state supreme courts ease restrictions on it or add clarity to existing rules, and some lawyers learn how to base a practice around it. The ABA Standing Committee on the Delivery of Legal Services maintains an up-to-date Unbundling Resource Center; here are a few recent news items from across the country, and across the border.

Virginia

On October 31, 2018, the Supreme Court of Virginia, along with changes to a few other rules, amended its Rule 1.5. The amendments to that rule will allow lawyers employed by legal aid, and pro bono attorneys acting on a referral from a qualified legal services provider, to file notices of limited scope appearance for just a part of a pending litigation, with a right to withdraw once they’ve completed the limited scope representation. These amendments complement Rule 1.2 of the Virginia Rules of Professional Conduct and add transparency to the process. The amendments and other rule changes were scheduled to take effect on January 1, 2019.

Iowa

In May 2018, an agricultural reporter from Iowa Public Radio covered a successful law practice in Van Meter, Iowa, that is built entirely on the concept of providing unbundled legal services for those in rural areas. The reporter, Amy Mayer, noted that it’s the emergence of new technology that may now be helping to spur firms like The Law Shop, which is a partnership between lawyers Amy Skogerson and Andrea McGinn. Drawing inspiration from California family law expert Forrest Mosten, who is said to have originated the unbundling concept in the 1990s, Skogerson and McGinn have built The Law Shop entirely around the model of taking on only certain aspects of a legal matter that someone might otherwise find possible but very challenging to handle on their own, perhaps by using services such as LegalZoom.

At the time of the public radio program, The Law Shop was planning to expand, and McGinn and Skogerson were preparing to offer training (with help from the Iowa State Bar Association) for other lawyers who are interested in offering unbundled services, including for those who want to incorporate it into a practice that continues to offer more standard service models. Learn more via the full text and audio from the Iowa Public Radio broadcast.

Minnesota

Whether as part of the lawyer referral service or through a different platform, in recent years, some bars have helped connect lawyers and clients who are interested in unbundled services. (Examples include the Chicago Bar Association, the State Bar of Michigan, and the Contra Costa County [Calif.] Bar Association.) One very recent such program is the Minnesota Unbundled Law Project, a joint effort among the Minnesota State Bar Association, the Hennepin County Bar Association, and the Ramsey County Bar Association, which went live in October 2018.

At press time, 27 lawyers were actively participating, and another 25 to 30 had applications in the works, according to Dana Miner, director of legal services at the HCBA. (Note: Because of a shared staffing arrangement that began on January 1, 2019, some job titles, including Miner’s, may have changed.)

The unbundled panel is considered separate from the lawyer referral service, in part because there is no telephone component, Miner said; instead, it’s an online-only tool (through Community.lawyer) that uses a wiki form to help make a potential match. Unlike the LRS, she added, it’s free to participate in the unbundled project. Interested lawyers must meet certain training requirements, have an “almost spotless” grievance record, and agree to take at least four referrals per year—though those referrals don’t have to result in an agreement to provide services.

Steve Marchese, pro bono development director at the MSBA, notes that this is a pilot project, and one that he hopes will help the bars learn more about the demand for unbundled services, the issues faced in delivering those services, lawyers’ satisfaction in offering them, whether unbundling helps meet legal needs, and how this model can be incorporated into a law practice. Soon, he says, the project will add a community component for lawyer participants, with practice tips, ongoing support, and a listserve where they can mentor and help each other.

Arkansas

In 2017, the Arkansas Supreme Court made changes to the Rules of Professional Conduct and Rules of Civil Procedure to facilitate offering unbundled services and lend more transparency. On June 20, 2018, the Arkansas Access to Justice Commission presented a sold-out symposium to help lawyers understand the rule changes and learn the nuts and bolts of offering unbundled services.

The rule changes were the result of a petition by the commission and the Arkansas Bar Association, based on four years of work that included researching how other states address unbundling and gathering Arkansas-specific data on self-represented litigants and market trends.

“It is the Petitioners’ belief that the rule changes proposed herein will equip Arkansas attorneys to adapt to new market realities posed by the DIY movement and help address the overwhelming unmet need among persons of limited and modest means,” the petition stated. “As a result, members of the Arkansas public who are bypassing lawyers altogether can have meaningful access to the counsel and advice of skilled advocates at prices that are affordable and that compensate attorneys for their time and expertise.”

The changes included explicitly authorizing “ghostwriting,” meaning that an Arkansas lawyer can prepare pleadings for a client without representing them other than preparing the documents. The lawyer is not required to sign the pleadings, but they must include this notation: “This document was prepared with the assistance of a licensed Arkansas lawyer pursuant to Arkansas Rule of Professional Conduct 1.2(c).”

Illinois

In September 2017, the Chicago Bar Foundation and its Justice Entrepreneurs Project, along with the  Illinois Supreme Court Commission on Access to Justice, the Lawyers Trust Fund of Illinois, and the Chicago Bar Association, released the Limited Scope Representation Toolkit.

The toolkit includes rules, forms, checklists, and a sample engagement letter, all intended to help Illinois lawyers understand the rules regarding unbundling or limited scope representation and how to make it a part of their practice. (Note: Miner and Marchese say that this has also served as a model for similar tools for lawyers in Minnesota.)

A CBF news item about the toolkit says that many participants and alumni of the Justice Entrepreneurs Project (an incubator program) have successfully incorporated limited scope representation into their practices. The CBF also mentions the CBA’s lawyer referral panel for limited scope representation in the areas of domestic relations, landlord/tenant, and contract/debt collection matters.

Surveys assess unbundling in United States, Canada

In 2017, the ABA Division for Legal Services surveyed lawyers about unbundled legal services, gathering responses from more than 34,000 lawyers in 25 states.

Among the respondents, 31 percent said they provided some amount of unbundled services in 2016; the survey report notes that if this is extrapolated to the overall lawyer population, more than 300,000 lawyers across the country offered these services.

Among those who don’t offer unbundled services, the two most strongly agreed-upon reasons were “I don’t think unbundling would work for much of my practice” and “I worry that unbundling would expose me to more malpractice claims.”

Among those who do offer unbundled services, the two most strongly agreed-upon positive statements were “Unbundling lowers the costs of cases so that more people can afford my services” and “Unbundling allows me to offer legal services at a more competitive price.”

The top three answers to the question of what would encourage more unbundling all involved increased clarity and guidance: concerning ethical obligations, malpractice exposure, and court procedures, respectively.

Meanwhile, across the border, August 2018 saw the release of the first-ever empirical study of Canadian lawyers’ and clients’ satisfaction with unbundled legal services and the impact on access to justice. The study was the final report of the Alberta Limited Legal Services Project, through which 60 lawyers provided unbundled legal services to clients across Alberta in almost every area of the law.

According to Canadian Lawyer magazine, the results amount to a “thumbs up” from lawyers and clients alike. Almost all lawyers and clients surveyed were satisfied with the unbundled legal services they gave or received, and most clients said they would hire a lawyer again on an unbundled basis. Similar to in the United States, many lawyers in Canada fear greater liability risk with unbundled services, but the Canadian Lawyer article notes that several law societies (akin to bar associations and/or regulatory bodies) are now addressing that fear by including unbundled services in their codes of conduct.

Now that the project has ended, a group of lawyer participants has stepped forward, and a steering committee has been formed, to carry forward the project’s website and roster as a permanent home for lawyers and clients in Alberta who wish to pursue unbundled services.