Across the country, the civil justice system is undergoing a transformation. More and more litigants are appearing in court without lawyers, making up well over half of the civil litigants nationally and closer to 75 percent in some jurisdictions (tinyurl.com/ycjlkew5). Self-representation is not limited to the poorest users of the court system; growing numbers of working- and middle-class families are also going it alone as it becomes increasingly challenging to find affordable legal representation. This underserved middle market—those who make too much to qualify for legal aid and pro bono services and too little for market-rate attorneys—is fertile ground for unbundled, or limited-scope, legal services. These are the litigants who might need a little help—coaching or forms preparation—but are prepared to do some of the heavy lifting on their own.
In response to this growing gap in the marketplace, all 50 states and the District of Columbia have amended their rules of professional conduct to explicitly allow lawyers to limit the scope of representation in some circumstances. (For a list of state court rules on unbundling, see tinyurl.com/ycazefac.) The exact mechanics and the scopes of the rules may vary from state to state, but the message is clear; legal consumers are changing, and the courts and the private bar need to adapt to keep up with them.
Limited-scope representation offers a powerful tool for increasing access to affordable legal representation and access to justice more broadly. It represents a natural evolution for the legal profession, mirroring similar trends toward unbundled services and products that can be seen in industries as diverse as cable television, car insurance, and financial services. However, the supply hasn’t yet caught up with the demand. In 2018, the ABA surveyed 47,000 lawyers in 24 states and found that less than a quarter of them offered any unbundled legal services (tinyurl.com/yc5t3cux). While consumers are asking for it, lawyers have been slow to offer it.
The ABA survey also asked respondents about their primary reasons for not offering unbundled legal services in their private practices. The top three areas of concern were: (1) ethical rules, (2) malpractice exposure, and (3) court procedures. Each of those fears may be rooted in some common misunderstandings and misconceptions about unbundling. In fact, the barriers to unbundling are far less significant than the private bar realizes.
Myth #1: It’s unethical to stop representing a client in the middle of a case. Many lawyers live by the adage “in for a penny, in for a pound” when it comes to legal representation. The thought of exiting a case while it’s still pending, absent good cause, may give them pause. However, the legal market is changing, driven by consumer demands for more flexibility and transparency, and the rise of new technologies has made it easier than ever to segment legal representation. As long as a lawyer follows the appropriate rules and best practices for unbundling, there’s nothing unseemly or unethical about terminating a representation at a previously agreed-upon endpoint.
The ABA Model Rules of Professional Conduct on limited-scope representation has been adopted in some form by all 50 states, and it provides the framework for evaluating the appropriateness of a limited-scope representation. Rule 1.2(c) states that “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” If an attorney and client have communicated effectively ahead of time and it’s done in a reasonable way in an appropriate case, there is no ethical reason not to limit the scope of representation. The rule acknowledges a limitation obvious to most practitioners: Not every client and not every case are a good fit for limited-scope representation. However, if a lawyer has made the determination that limited scope is reasonable and appropriate in a situation, there’s no ethical reason not to offer it as an option to a client.
Myth #2: My malpractice insurance won’t cover unbundled legal services. The next common misconception about unbundling is that it will adversely affect a lawyer’s ability to obtain reasonably priced malpractice coverage. An informal survey of ten malpractice insurers from across the country both debunked that myth and offered some practical tips for practitioners looking to responsibly unbundle their practice. Not one of the insurance providers surveyed asks applicants about unbundling as part of the malpractice insurance application. As one of them pointed out, if unbundling were in fact seen as a “problem” area, it would be screened for at the outset. Instead, insurers look to the client population served and area of law to determine if there is an elevated level of risk; the unbundling is not a red flag on its own. None of the surveyed malpractice providers charged a premium for insuring unbundled legal practices as a matter of course, and none of them suggested that reasonable and responsible unbundled practices would be an impediment to obtaining affordable malpractice coverage.
The surveyed insurance providers did offer some risk management tips for unbundling without increasing malpractice exposure. The common theme across all of them was clear: written documentation of the scope of representation in the form of a written engagement letter. Raymond Birkinsha, vice president of claims/marketing/legal/operations at AltaPro Insurance, describes the “perfect retention letter” as one that clearly defines the scope and cost of the limited services and has a checklist outlining both the tasks to be completed by the attorney as well as those to be completed by the litigant. Many bar associations and access-to-justice commissions have created model checklists and engagement letters to guide attorneys in crafting retention letters and checklists (for examples, see tinyurl.com/y8kytc27). The scope may change over time if the client decides to hire the attorney to offer additional tasks and services, but each change should come with a new agreement and checklist.
Colorado has been a national leader in unbundling, amending its rules to permit limited-scope representation in 1999. Jim Coyle, the recently retired attorney regulation counsel for the Colorado Supreme Court, estimates that in the almost 20 intervening years, only two or three complaints related to unbundling legal services have been filed and prosecuted in the entire state. Another insurance professional from Oregon agreed that there are very few malpractice claims related to unbundling, and he noted that the rare complaints primarily result from a failure to appropriately document and communicate the scope of representation ahead of time. This was a common sentiment across all the insurance providers surveyed; responsible limited-scope representation requires clear communication and documentation about the scope of representation.
Myth #3: The court won’t recognize the limited nature of my representation. The third concern raised by private practitioners as a barrier to limited-scope practice is the court itself. Many practitioners raise concerns about entering limited-scope court appearances, as they worry judges may refuse to let them out of the representation once it is completed. Almost all state rules governing limited-scope appearances are carefully crafted to avoid this situation; attorneys in most states can terminate a limited-scope appearance once the representation is complete simply by providing notice to the court. As with any change in rules or practice, there is a learning curve and an adjustment period. However, judges, clerks, and other court staff are becoming more familiar with the respective rules in their states about limited-scope representation and the many ways in which it may be used to provide legal services more efficiently and cost-effectively, ultimately resulting in lighter court calls.
The Business Case for Unbundling
Beyond the benefit to the court and to the litigants themselves, there is a huge upside to offering unbundled services from a business perspective. According to a 2011 ABA study, two-thirds of the people surveyed stated that they would be interested in talking with an attorney about unbundled services after they learned what unbundled services were, and 80 percent of survey participants said that offering unbundled legal services reflected favorably upon lawyers (tinyurl.com/ybg4gsa6). A 2013 study conducted by the National Self-Represented Litigants Project titled “Identifying and Meeting the Needs of Self-Represented Litigants” (tinyurl.com/jq5qmyw) and a 2016 companion study conducted by the Institute for the Advancement of the American Legal System titled “Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court” (tinyurl.com/hhq4jfy) further illustrate the point that there is huge untapped consumer demand for more flexible, unbundled legal representation.
Unbundling is increasingly the future of many professions, and the legal services industry is not immune to this trend. Airlines, wireless providers, newspapers, the music industry, and personal and financial services have all found ways to unbundle services to create new or improved markets that better serve all consumers. 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 needs to keep pace by offering unbundled services to better meet the needs of all consumers; not doing so is a missed opportunity for a rare win-win arrangement that can benefit both clients and attorneys. (See Sara Smith and Will Hornsby’s “Unbundled Legal Services: At the Tipping-Point?” for an examination of whether the elements are in place for the unbundling delivery service model to reach a tipping point where it becomes a far larger part of the equation to expand affordable legal services: tinyurl.com/yawk4d2a.) For clients, limited scope offers predictability when paired with fixed fees, empowerment through choice and teamwork, and accessibility for those clients who have limited funds to dedicate to legal services. For attorneys, limited-scope representation offers flexibility, control, stronger attorney-client relationships, and access to a large pool of untapped potential clients.
Success Stories and Tips
In June 2013, the Chicago Bar Foundation launched the Justice Entrepreneurs Project (JEP), an incubator with the goal of training a new kind of lawyer. JEP lawyers are focused on leveraging technology, unbundling, and offering predictive pricing to better meet the legal needs of all people, especially the underserved middle market. JEP lawyers are trained in unbundling and taught how to ethically and appropriately offer a diverse range of affordable legal services. Today, the majority of JEP attorneys offer limited-scope representation to potential clients and are seeing the benefits to both them and their clients firsthand.
Two of the attorneys who have succeeded in building a practice around limited-scope representation are Alyease Jones and Roya Samarghandi. Both have found that limited-scope representation allows them to open up their practices to a greater percentage of the population—namely low- and moderate-income people who feel they have been priced out of the legal market. Over a third of their practices are now unbundled, and in the case of Jones, that number is over 50 percent. Both attorneys offer document preparation and/or review, coaching (e.g., ongoing advice throughout the case from the sidelines or trial preparation assistance), and limited-scope court appearances. Their unbundled service offerings have been met with overwhelmingly positive feedback from clients who are thrilled to be presented with flexible representation options that are predictable, transparent, and within their budget.
Attorneys offering unbundled services in other states have had similar experiences. Lauren Lester and Erika Holmes have family law practices based in Denver, and 70 percent and 95 percent of their practices, respectively, are unbundled. “Offering unbundled legal help allows me to work with clients who ordinarily think they can’t afford a lawyer. My clients only pay for the help they need and feel empowered to work on the parts of their case they feel comfortable handling themselves” says Lester.
Holmes agrees and adds, “Unbundled legal services are a win-win for the client and the lawyer. The clients get customized legal services that meet their individual abilities and needs—getting assistance with the tasks that scare them the most and not paying for the ones that they can do themselves. The lawyers get to customize their practice to the tasks or representation they enjoy the most and know they are truly helping the vast population needing legal services.”
Echoing the malpractice insurers, all four attorneys agree that having a written engagement agreement that clearly defines the scope of the representation and who is responsible for each task in plain language is by far the most important tip. “Lawyers can get tripped up by either not having a discussion about the scope at all or stating the scope vaguely. The more detail the better. The client will appreciate the information and understand exactly what is covered by the limited-scope representation” says Lester.
Below are additional tips for attorneys seeking to offer limited-scope services to legal consumers.
During the initial consultation, it’s a best practice to:
- Talk with potential clients about their goals, needs, capabilities, and budgets.
- Explain the difference between limited-scope representation and full-scope representation (this satisfies the “informed consent” requirement in many states).
- Apportion tasks in writing in an “Attorney & Client Task Assignment Checklist” and incorporate this Checklist into your written engagement agreement (see the example in “The Chicago Bar Foundation’s Limited Scope Representation Toolkit,” tinyurl.com/y8kytc27).
- Discuss the proper filing and service of pleadings and deadlines.
- Identify ancillary issues outside the scope of the representation.
- Explain how to communicate with opposing counsel on matters outside the limited-scope representation.
In the engagement agreement, it’s a best practice to:
- Put everything in writing. We can’t emphasize this enough: Use a written engagement agreement!
- Be very specific in your scope provision about which tasks you will handle and which tasks the client will handle. And use plain language.
- Discuss and document all changes to the scope of the representation in a new engagement agreement as they arise.
Additional limited-scope representation resources for attorneys can be found at the ABA’s Unbundling Resource Center (tinyurl.com/yapy7u6c).
Limited-scope representation offers almost boundless opportunities for practitioners to increase revenue and build flexible and customized practices while increasing access to justice by providing affordable legal services to a vastly underserved population: moderate-income people. And the barriers to unbundling are very low. With signs pointing to unbundling as the future of legal services, now seems like as good a time as any to reassess your practice, figure out how to incorporate limited-scope services into it, and take advantage of this rare win-win opportunity.