Bar News - January 20, 2016
Criminal Law: Can Criminal Lawyers Unbundle Their Services?
By: Jared Bedrick
Despite clear ethical issues surrounding the unbundling of legal representation in criminal cases, a clinic service in which a lawyer offers only rudimentary procedural information to the accused might still be viable.
For many years now, medical and financial professionals have been unbundling their services in order to streamline service delivery and tailor fees to more closely represent the client’s actual service needs. When it comes to legal services, the “unbundled” concept has been adopted over the past decade, after the NH Supreme Court gave its blessing through rule changes, but these rules so far have not permitted limited appearances in criminal cases. As a consequence, many in the criminal bar have either overlooked or altogether dismissed unbundled services as a legitimate business option for their firms.
Criminal practice is different from all others, for good reason. Unlike other areas of practice, the government in a criminal action is permitted to act in ways that no human citizen can – by searching, arresting, and imprisoning other citizens; powers that have no equal measure in other cases. Disparate treatment favoring criminal defendants, then, is eminently fair.
But while those accused of offenses that carry jail time as a possible punishment are provided an attorney at state expense, the remainder of criminal defendants must pick up the tab for their own defense. These defendants face consequences perhaps not equal to incarceration, but not far off: being labelled a criminal, losing the privilege to drive, or being removed from a home due to a no-contact order. The class-B misdemeanor conviction can cost a defendant his or her job and divide a family just the same as many jail-time sentences. Yet the opposition enjoys the same robust resources in either case.
In light of this imbalance, some sustainable, yet affordable service for defendants in misdemeanor and violation cases is a practical necessity. The NH Bar’s Lawyer Referral Service tries to address the need, but full representation is not practical for some, even at a reduced rate, so many defendants go unserved.
The unbundled services movement aims to fill this gap by limiting the representation to certain critical functions, thus reducing the cost. It’s undeniable, however, that unbundling criminal defense services raises thorny ethical questions. Representation in criminal cases is expected to be all-encompassing and ongoing, and unbundled services are categorically not, which increases the likelihood that the lawyer won’t obtain enough information to provide effective counsel. For example, in a short meeting with a defendant to discuss an upcoming trial, the defendant might never mention that he or she holds an occupational license that will be jeopardized by a conviction. In the full-representation context, the decision to go to trial might be calculated differently to account for that risk.
There is sparse guidance on the ethical limits of unbundling criminal cases. The NH Bar Association Ethics Committee is currently considering how to address the appointment of standby counsel in criminal cases, according to committee member and criminal defense attorney Richard Guerriero, who explained how standby counsel issues relate to unbundled services.
Both standby counsel and unbundled services involve a client’s request for limited services, albeit for different reasons. The representation in both cases is limited in time, scope, and authority, which stymies the lawyer’s ability to competently and diligently service the client. Exactly what is permitted attorney conduct becomes obfuscated, especially if the client struggles to understand the limitations of the relationship with the attorney.
Current practice is for attorneys serving as standby counsel to protect themselves by requesting specific instructions from the court on the scope of appointment, such that the expectations of both the attorney and defendant are in line. Likewise, lawyers who provide unbundled services must clearly define the scope of the services in writing.
Applying the ethical standards as the majority of states are, a criminal defense attorney working on an unbundled basis might be barred from performing nearly every task traditionally associated with a criminal case. So, can an attorney seeking to unbundle criminal defense services provide any service of value?
The local champion for unbundled services, Community Legal Services, hosts clinics for people who are seeking legal assistance but are unable to afford a lawyer. Clinic customers prepay for one hour of an attorney’s time, during which the two sit in a private room and talk about the case.
In other areas of practice, the lawyer’s full panoply of services would be available to the clinic customer. However, criminal practitioners seeking to borrow the clinic model would likely need to limit the “menu” of services available to criminal customers, to avoid giving ill-informed advice.
A criminal clinic session might then resemble something closer to a lecture on criminal procedure in New Hampshire. The goal would be to disabuse the defendant of misinformation and to help him or her better understand the tasks and decisions that lie ahead. For example, a defendant who was misinformed about the consequences of a DUI conviction might be prompted to research, discover, and avoid a life-altering disaster. Or a defendant who had thought to collect statements from his friends to corroborate an alibi defense without arranging for their appearance at trial could be spared an unjust result.
Considering that the attorney gets paid with only minimal investment – no appearances need be filed, no witnesses subpoenaed, no files retained, and no follow-up phone calls – more attorneys might be in a position to participate than are able to provide pro bono or reduced-fee service. As an added bonus, a clinic session might be just what some disillusioned defendants need to help them understand the gravity of the pending charges, leading them to generate or borrow the money to become a full-fledged client.
Will clinic customers be as well-represented as those with appointed counsel? Emphatically, no. But will they be better off than they would with only www.nolo.com and a Sovereign Citizen friend in their corner? Absolutely.
Unbundled services might not be the perfect solution, but that’s no excuse to abandon the pursuit for an innovative solution to the pro se problem in the criminal courts.
Jared Bedrick is a solo practitioner with an office in Manchester. He graduated from UNH School of Law in 2012 has since devoted his practice to all manner of litigation.