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Bar News - May 18, 2007


NHBA Insurance: Unbundled Legal Services and Your Malpractice Insurance

By:

 

The biggest risk a lawyer faces in limited representation is simply to understand that such an engagement does not necessarily come with limited legal malpractice risks.

           

Often, offering unbundled or limited legal services is like expanding your practice to include a new field of law. Risk management tools should be used to prepare in advance any forms that you might need to provide the services and to formulate guidelines or office procedures which will help keep you from straying into services that you do not want to offer or perform.

           

During your first consultation with a new client you should:

 

  • Develop the full circumstances of the representation—not just those facts pertaining to the limited representation;
  • Explain all the legal implications of the client’s situation to include rights, remedies, and courses of action—not just those that are pertinent to the limited representation;
  • Explain the implications of a limited representation in terms easily understood by a client. Stress what you will and will not do and the risk and opportunities of proceeding on that basis;
  • When appropriate, advise the client to see another lawyer on legal issues outside the scope of the limited representation, stressing time limitations’ considerations;
  • Suggest that the client consider seeking a second opinion on the adequacy of the proposed limited representation for the client’s needs.

 

Once over that hurdle, you must resist the temptation to go beyond the agreed scope limitations. If you do so, the door may be open to show you assumed full responsibility for the matter. And, always be sure to thoroughly document your file.

           

While all client representations should be documented with a letter of engagement, it is even more crucial when accepting a limited-scope representation. One risk management expert recommends that when providing unbundled services the limited scope engagement record contain the following information:

 

  • The client’s situation and goals.
  • The tasks the lawyer will accomplish.
  • The available options and opportunities.
  • The anticipated costs of various tasks necessary to achieve the client’s goals.
  • Tasks not assigned the lawyer.
  • The benefits and risks of the tasks that the lawyer will undertake.
  • Tasks the client has agreed to perform.

 

If the client asks you to provide other services, you should document the expanded scope of representation as well as any limitations.

           

While there have been few malpractice claims arising solely from delivering unbundled legal services this may be because there has been insufficient time to develop claims’ experience in this area.

           

For more information on this topic, contact Suzanne Morand of the NHBA Insurance Agency at smorand@nhbar.org or 603-715-3204.

 

 

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