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Bar News - May 4, 2007


Unbundled Services: Good for Attorneys, Clients

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New rules which allow attorneys to provide clients with “unbundled” or limited-scope legal services have been attracting a great deal of attention in many states across the nation. Most courts recognize that when a pro se litigant appears in court—and does well in the presentation of his or her case—there is often an attorney somewhere in the background who has helped the person prepare for that appearance.   

           

Recently, new court and professional conduct rules in New Hampshire have put a more formal face on these limited-scope services.  Under these new rules, attorneys are actively encouraged to provide “unbundled” services in a litigation context, as opposed to the more traditional transactional law setting (that has routinely utilized limited scope representation).  The general opinion of the courts is that such services provide clients with greater opportunities to “get it right” and present attorneys with the ability to offer more services to more people, particularly when dealing with pro bono and reduced-fee cases. 

           

“We believe there will be more options for legal services and representation benefiting both the public and attorneys,” said Virginia Martin, New Hampshire Bar Association (NHBA) Associate Executive Director for Legal Services.  “And of course we’re hoping that the new unbundled rules will encourage attorneys to take pro bono cases—and also sign up to be part of the lawyer referral service.”

           

According to John Norton, a Keene attorney who is chair of the NHBA Pro Bono Referral Board and a member of the NHBA Ethics Committee, “Limited representation allowed under these rules can take on many different forms, such as providing limited advice as to court procedures and what a client can expect in a court case, preparation of pleadings, preparation or coaching for specific hearings, review of pleadings and/or settlement agreements, and appearing in certain specific hearings for a limited purpose.  In recent years the practice of limited-scope representation is viewed positively as a new opportunity to allow more citizens to avail themselves of important, albeit limited, legal assistance in on-going litigation, to the benefit of all—clients, attorneys and the courts.”

           

Norton explained that in litigated cases, it is recommended that the client and the attorney sign a “Consent to Limited Representation” form—an example of which is provided in Rule of Professional Conduct 1.2 (g).  This form explains the nature of the limited representation and is a private contract that remains confidential.  If in this contract the attorney agrees to actually appear in a court proceeding, then the attorney files with the court a separate “Limited Appearance” form, detailing the matter in which the attorney will be appearing.  At the conclusion of that limited appearance matter, the attorney will file a separate “Withdrawal” of the prior “Limited Appearance,” and that withdrawal will be automatically approved by the court.

           

 “Attorneys may now perform, in litigated cases, only what is agreed to with the client and is reasonable under the circumstances, such as draft a motion for the client to file, review an agreement, even appear in court just one time—and not be bound to represent a client regarding any other aspect of that case,” continued Norton.  “By signing the ‘Consent to Limited Appearance’ form, both the client and attorney know, up front, exactly what is and what is not to be accomplished by the attorney.  And the attorney is not obligated to do anything more than what was agreed upon.  When properly used, this should result in clearer client expectations, and greater client and attorney satisfaction.”

           

“Quite frankly, it is a stress-reducer for me not to be stuck with a difficult (non-paying) client with a difficult divorce for too long!” said Vanessa Wilson, a sole practitioner in Claremont.  “On Professionalism Day some attendees expressed concern that clients could misconstrue advice you might give while performing a limited service—and blame you later for bad advice.  However, I think that’s the usual risk we run—and I have always found clients happy and grateful for what I could do.”

           

“Of course, I always tell them 20 different ways things could go wrong!” she said with a laugh.  “I believe more people will become involved as courts and attorneys begin to get the word out.”

           

Attorneys may visit the http://www.courts.state.nh.us/supreme/orders/20060321.pdf to review the rules—and may take an online NHBA-CLE, “The New Unbundling Rules (Limited Representation)” to help them prepare to assist clients under the new rules.  There is still an on-going discussion of how best to let the public know about the changes, but already courts as well as private attorneys are striving to get the word out, with posters appearing in some courts.

           

The new rules apply only to civil cases, of course, many of which involve divorce-related or other family law cases.  Says Honey Hastings, a divorce attorney practicing in Wilton, who has her own Web site with a page devoted to unbundled services (www.nhdivorce.com/unbundled.htm): “Even though my practice is primarily mediation and collaborative law, I have appeared in court three times on a limited-service basis since last July.  Of course, I have been providing non-litigation unbundled services for years—but the requests for them have grown recently.”

           

The initial statement on Hastings’ Web page states that unbundled services do not usually include going to court and lists legal tasks that can be provided “a la carte.”  Among the 14 legal tasks listed are: legal research, drafting a document, negotiating a settlement, coaching a pro se litigant, providing back-up or trouble-shooting during litigation, and representing the client at a single court hearing.

           

“My client contract has boxes to be checked for which unbundled services are needed.  The client makes the choices and I do that part of the case. The most frequent unbundled service is to negotiate a divorce settlement, then prepare the joint petition, package up all the paper work, and mail it to the court on behalf of the pro se client,” said Hastings.

           

In an example of a limited appearance in court, Hastings provided the following example: “I had an uncontested divorce case in which the wife was afraid the husband would go to court and try to change the agreement he had signed; I went to court just one time with her to process the divorce.”

           

Along with other groups, the Pro Bono Board and the Ethics Committee offered suggestions to the Advisory Rules Committee; the public was also invited to comment; the Supreme Court looked at all of these suggestions when considering the adoption of the new rules. The American Bar Association recently presented the New Hampshire Bar and its Pro Bono Program with the Louis M. Brown Award for Legal Access in recognition of efforts to address critical issues involving unbundling, particularly limited appearances and ghostwriting.

           

Christine Rockefeller, an attorney with Burns, Bryant, Cox, Rockefeller & Durkin in Dover said that from the point of view of a pro bono case, when a lawyer is trying to provide as much direct attorney time/support as possible to qualifying litigants, “unbundling” is a very positive development.

           

“There is a tremendous need for pro bono attorneys in family law/probate/ guardianship-type matters. Often, people need help or advice now, and on specific issues, such as hearings, but attorneys simply cannot always commit to the entire case,” she said.   “I think more attorneys would be willing to take on more tasks—myself included—provided they are not committing themselves to months, sometimes years, of work. Particularly with domestic cases, I find many cases settle after the ‘temporary,’ but having counsel at that stage is critical. Personally, I expect to be able to help more people by taking more cases under the unbundled process.”

           

When asked if she could provide a specific example from her own experience of a limited-scope service, Rockefeller responded:  “I was contacted about a possible pro bono referral for a wife, not yet an American citizen, with weak English skills. Her teen-age daughter is here as well, and both were totally dependent upon the husband.”

           

Rockefeller went on to explain that she filed a limited appearance and represented the client at a temporary hearing and was successful in obtaining an order for temporary support.  This unbundled approach allowed her to take care of a critical and immediate client need without taking on the entire matter. 

 

If you would like to relate your own experiences with unbundled services—either pro or con—please contact Ginny Martin at 2 Pillsbury Street, Suite 300, Concord, NH 0331 or by e-mailing gmartin@nhbar.org.

           

For opportunities to provide limited-scope services, contact Robin Brown at the NHBA Lawyer Referral Service, 603-224-6942. For Pro Bono participation opportunities, contact Ginny Martin or Cindee Carter at 603-224-6942.

 

 

 

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