Bar News - October 21, 2015
Unbundled Legal Services: Business tool, or undue risk for litigators?
By: Kristen Senz
For many litigators and law firms, it just doesn’t seem worth it. Why spend time collecting all the information from a client about a complicated case, just to enter a limited appearance for a single hearing, risk liability exposure and unintentional ethics violations, and give up control over the case and client?
But some lawyers in New Hampshire have found that providing discrete legal services to clients as part of a spectrum of representation can be part of an effective business strategy, especially during an economic downturn.
New Hampshire courts and legal aid advocates had high hopes that rules created nearly 10 years ago to help attorneys provide “unbundled” legal services would reduce the number of unrepresented people in courtrooms throughout the state. Instead, although the do-it-yourself attitude of some legal consumers would seem to encourage the use of limited-scope representation to lower legal costs, the impact of the rules has been muted by a list of legitimate attorney concerns and lack of procedural understanding by the courts and the bar.
Adopted in early 2006, Professional Conduct Rule 1.2 and related rules outline procedures and provide sample forms designed to enable a litigator to represent a client for a discrete portion of a case – whether it’s help writing a pleading, representation at a hearing, or just some advice – without running afoul of other ethics rules. The idea was to translate a decades-old practice among transaction attorneys for use by trial lawyers, creating a new form of limited-scope representation that consumers could afford, thus increasing business for lawyers and access to justice for litigants.
It’s a win-win in theory, but in practice, not so much. Several concerns, ranging from the economic to the ethical to the personal, have kept lawyers from embracing limited-scope representation.
Did you exercise reasonable care in learning about the whole case? Did you fully disclose the potential ramifications to the client of not having representation for other aspects of the case? Will your insurance company cover you if you are sued for malpractice by a client who hired you for a limited-scope legal service? Will the financial rewards ever justify the upfront time with clients?
“I found that if I wasn’t assuming complete responsibility for a file, I didn’t feel that I was doing the job I was supposed to be doing,” says Circuit Court Judge Robert Foley, who spent 30 years as an attorney in private practice. “I think, from the perspective of an attorney, it’s got a lot of problems, but as a judge, I’m happy to have attorneys whenever they appear.”
The concerns among attorneys are real, and because of them, no one expects to see billboards touting the availability of attorneys to help clients draft and file isolated pleadings. But offering to “unbundle’ legal services during an initial consultation is a way to build trust with clients, who often end up coming back after the initial engagement.
Unbundling Law Practice
Cathy Shanelaris spends a lot of time with her divorce clients going over the various options on a spectrum of least to most legal representation, and lowest to highest cost. Oftentimes, clients are thrilled to learn that they can pay her just to help them through an immediate roadblock, and she has developed a very detailed retainer agreement that sets out the parameters.
“I always specifically write when my attorney-client relationship with them is going to terminate,” she says. “If I’m going to go to a hearing with a client, I will put that in the limited representation form and discuss with the client whether the scope of my work will be done after the hearing, or whether I am going to file a motion to reconsider an order that I receive from the hearing.”
Limited scope representation doesn’t work for every lawyer, every case, or every client. As attorney Sue Talia, a leading expert on the subject, says on her website, www.unbundledlaw.org: “There are people who are simply incapable of self representation, even with excellent coaching and document assistance, and they are not good candidates.”
Shanelaris acknowledges that the most difficult part is asking the client all the same questions as if she were representing him or her for the entire matter, but “I absolutely think it is worth it,” she says. “Especially when the economy took a downturn, limited-scope helped to continue the firm’s income, and it was great for the clients; they were equally happy that they didn’t have to pay a full retainer to get over whatever hurdle they were facing in court at that particular time.”
Shanelaris and other attorneys have found ways to adapt the unbundled service model for different clients and cases. “Sometimes we do some limited representation on a smaller retainer on an hourly basis, or sometimes we charge a flat fee to do the particular thing we’re going to do. Sometimes that depends on the scope of what we’re going to do, and sometimes that depends on the client.”
A high percentage of these clients come back for more legal help, says Shanelaris, whose firm now does about 20 percent of its business on an unbundled basis. “Those cases actually do very frequently turn into full-retainer cases, once you’ve developed that client relationship.”
And that relationship has become harder to develop.
“Clients in the last several years, anecdotally from my experience, are very savvy about talking with attorneys about what they’re going to pay, and a lot of them feel that they just need help with a portion of the case,” says Shanelaris.
In particular, when a litigant is pro se, and there’s an attorney on the other side, a limited engagement with an attorney may be all that is needed. “I have had many limited representation cases reach a final settlement purely because I could communicate with the other attorney and respond to settlement proposals where the party had been just very nervous to make that happen,” Shanelaris says.
NH Circuit Court Administrative Judge Edwin Kelly says he’d like to see more attorneys making use of the rules allowing limited-scope representation. “I don’t think it has been used anywhere near to the extent it could be, and frankly, should be,” he says. “There’s still confusion in the minds of members of the bar, as well as some of our judges’ minds, about exactly how it works.”
Asked about some lawyers’ concern that they might get locked into a case by the court after the agreed-upon task is complete, Kelly said that shouldn’t happen. “The judge may want that person to stay in, but that’s beyond the court’s control.”
To address this and other concerns, Kelly said, the court should work with the bar to talk through all the issues and barriers to limited-scope representation. “There are so many opportunities where the presence of a lawyer or just assistance in the preparation of pleadings would be such a help to people that are otherwise representing themselves,” he said.
Unbundling Pro Bono
The so-called unbundling of legal services is used more often in pro bono work than in regular practice. The principal author of New Hampshire’s limited-scope rule was Keene lawyer John Norton, who served for many years on the NH Bar Association Ethics Committee and as chair of the Pro Bono Governing Board. Norton, with the assistance of NHBA Pro Bono Director Ginny Martin, championed unbundling as a way for lawyers to aid low-income litigants and expand their clientele. Volunteers with the NH Bar Association Domestic Violence Emergency (DOVE) Project routinely represent victims only at protective order hearings.
“Using a holistic approach, victims of domestic abuse receive practical and emotional support from a crisis center advocate while linked with a lawyer to perform a discrete legal task,” said DOVE Coordinator Pam Dodge. “There is no substitute for the value an experienced attorney can offer, even though limited in scope, when a pro se litigant is struggling to make sense of an environment that to them often seems foreign and intimidating.”
Quentin Blaine, an attorney in Plymouth, represents pro bono clients before they sign periodic payment agreements in small claims cases as part of a program started by NH Legal Assistance, now operated in partnership with the Pro Bono Program.
“When people have a judgment against them, and the plaintiff files a motion for periodic payments, the defendant has to disclose assets and income, and then the judge can set a payment order,” he explains. “Sometimes, there’s income that is exempt, so we help educate the client and educate the court on that if necessary.”
Blaine said he feels that unbundled legal services do have a place in regular practice as well.
“I think it’s a useful tool in the right situations and shouldn’t be feared. It doesn’t take too long to get the Supreme Court form customized, and I’ve gone much further to get it down to a one-page agreement, which people seem to understand and don’t expect anything more after that.”
In addition, it provides an avenue for attorneys to provide legal services to low-income people, without giving their time away for free.
“It really is a step around totally free pro bono services,” Blaine says. “It gets services to clients who may be in need, without getting into a full pro bono case, or you can get compensated for the work you put in and help someone else out.”
Richard Uchida is co-chair of the NH Access to Justice Commission. As an attorney practicing real estate and construction law, he has frequently represented clients on a limited basis, helping with a lease, for example, but not the formation of a business entity or an agreement with the bank.
Uchida, who now works at a large firm that does not do limited scope representation, said he understands that in litigation, the issues aren’t always as clear-cut. He echoed Kelly’s sentiment that it’s time for the bar to revisit the rules in collaboration with the court.
“I think now, about 10 years out, it’s time to take a look at the current rule and the current practices of the courts to see if we can make changes to facilitate greater use of limited scope representation,” Uchida said, adding that by not making it easier for consumers to afford lawyers, “We’re not doing the judicial system any favors, and we’re not doing our profession any favors.”
The American Bar Association has set up an unbundled legal services resource bank, which contains general and state-specific information about providing limited scope representation. It can be found online.
The “For Members” tab at www.nhbar.org also includes resources on unbundling legal services in New Hampshire.