It’s the Culture, Stupid! – Why Lawyers Aren’t Offering Unbundled Legal Services

It’s the Culture, Stupid! – Why Lawyers Aren’t Offering Unbundled Legal Services

Interviews with 253 SRL’s in my recent study (http://www.representing-yourself.com/PDF/reportM15.pdf) expose the reality that despite a decade of provincial Law Societies drafting new rules of professional conduct on limited scope retainers (LSR’s) or unbundled legal services – when lawyers provide services on an hourly basis for specific contracted tasks – lawyers who regularly offer their clients LSR’s are still about as rare as a shooting star on a cloudy night.

The 53% of SRLs in my study who started with counsel but ran out of money to pay the bills – as well as those who could never afford a retainer in the first place – were totally baffled by this. In interview after interview, SRLs described going systematically through the Yellow Pages and calling a dozen or more law offices asking: “Will you assist me with my case by (eg) reviewing my documents/ appearing with me at a hearing/ other task, and bill me only for the hours we agree that you spend on this assignment?” To their amazement, almost no lawyer said “yes”.

A total of just 13 SRLs reported receiving unbundled services. Virtually all sought and /or desired this.

What is the problem here? Supply should meet demand, right? Why do most lawyers not offer – and often do not see why they should consider offering – legal services this way?

Response # 1

The public – aka the ubiquitous “non-lawyers” – do not understand that this is so much more difficult than they can possibly appreciate.

Certainly unbundling is different than a traditional lawyer-in-charge (cf The New Lawyer) approach and requires adaptation to change. The profession needs to figure out how to set and manage reasonable client expectations in a LSR.

Surely we can be smart enough to figure out how to offer what the public is asking for, and to protect ourselves to boot? And why would we imagine that today’s consumers would be satisfied with the answer “This really isn’t good for you – we know better?”

Response # 2

Lawyers who have plenty of clients who are willing to retain them in the traditional paradigm have no incentive to use LSR’s.

Ok, so this is a bigger problem. There is little or no incentive to offer unbundled legal services if you have plenty of clients willing to retain you in a full-on, lawyer-in-charge, traditional retainer model.

However, the writing is on the wall. Without adjusting how legal services are billed, we now know that fewer and fewer personal clients will use lawyers (more than half the litigants in most family courts, for example). And that corporations are voting with their feet, judging by the precipitous rise in in-house counsel and growing demands for alternative billing structures (a quick glance through the last 12 months of ABA magazine articles provides a rich data source for this debate)?

Moreover – is it naïve of me to suggest that the public reputation and legitimacy of the profession is adversely affected if it only represents (literally) a tiny fraction of the population, primarily corporations?

Response # 3

If a “mistake” is made or the client is dissatisfied as a result of a LSR, they will bring a formal complaint or even sue for malpractice.

There is no empirical evidence that LSR’s generate more client complaints than traditional retainer agreements. None of the provincial Law Societies presently break down their complaints data on this basis.

My instinct is that the very small number of LSR’s produce relatively fewer dissatisfied customers than traditional retainer agreements (no shortage of complaints there). It is a matter of working at properly explaining and managing expectations.

The respondents in my study who received unbundled services were grateful and relieved to do so. The rest – who did not find a lawyer who would offer a LSR – were despondent, baffled and dissatisfied.

And a reality check: lawyers never know “everything” about a case. We need to get over our fetish with knowing “everything” about a case before being able to advise, negotiate, etc etc. Clients often don’t tell us. The complexity of law – especially the way that law has developed in the last 20 years – means that at best a competent lawyer is giving their client an “educated guess”, even where they are providing “full scope” services.  Instead of focusing on the dangers of advising a client based on limited information, we need to be realistic about just how rarely a lawyer can ever give their client a completely reliable opinion.

A LSR should and can focus on what the lawyer needs to know in order to do what they are being contracted to do.

Response # 4

The commitment of the profession to high quality work is compromised by taking on work on a piecemeal basis

The work that a lawyer can do when she is retained on a LSR is different from the work she would do on a traditional retainer. It is limited in scope – that’s the point. We should begin with an assumption that our clients are intelligent enough to understand that their counsel can only deliver what they have contracted to do. It is insulting to tell the public that they cannot have what they want because they cannot possibly understand it (above).

It must be possible to come to a reasonable accommodation of the reality of limited scope services between lawyer and client. If a lawyer cannot negotiate this with her client, why should her client trust her to negotiate with the other side?

Not every case is suited to a LSR, and there are some obvious warning signs; for example if the client appears to have serious mental health issues, or if there is an especially large volume of litigation material amassed to date. However the principles that safeguard against these risks – clarity, talking it through and not just relying on paperwork, noting and addressing the warning signs of diminished lack of client understanding, continuing to be transparent about actual costs – are the same that any lawyer faces with any client.

There is enormous potential in the concept of unbundling (and hats off to Forest Mosten, the “grandfather” of unbundling, who was laughed out of town when he first proposed this idea 25 years ago). Let’s get serious about realizing it.

The culture of legal practice is simply not a good enough reason for resistance to LSR’s.  If the public is to access the legal services they say they want and recognize that they need, they require an affordable proposition from the legal profession.

This means not just permitting, but promoting – via education, open debate and the development of best practices – the use of limited service retainers. Perhaps most important of all, this would show that the profession is listening to the public.

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Comments (2)

  • Delmer O. B. Martin

    It all comes down to WHO is ACTUALLY Serving WHO??? AND I believe true Unbundling of Services could and would serve Justice. In my personal experience I was looking for a solicitor to speak to a motion one time and after some 2 dozen contacts I could not locate a single lawyer that would take my cash. (nobody would go on the record as my solicitor on an unbundled retainer) They were all scared of the court… (I even contacted a new member of the bar who did not have a client base yet and this individual actually accepted the retainer and then begged me to be released a day later) and Since there are more SRL than ever the court staff and the judges like the idea however not most of the lawyers, in my opinion. The Lawyers individually completely control who is or is not granted this service. The lawyers have all the control and NOT the clients. (They either want it all or nothing) Here is a idea, how about every prospective client who gets turned down for a requested legitimate retainer for unbundled services gets paid for 15 minutes worth of the lawyers time as a show of good faith??? Everyone wins for a change.

    November 27, 2014 at 10:00 pm
  • Trevor

    Really good article. As a self represented litigant, I’ve certainly run into this issue. In doing legal research, I realized I would need the services of a lawyer. When full representation failed because I simply couldn’t afford it, I continued research while I searched for lawyers and became aware of “unbundled” services.

    No lawyer agreed to do this and the more research I did, the less helpful I felt it would be, even though I desperately needed legal advice. At this time, I was substantially invested in the case I was preparing and realized that to receive the proper answers and follow up, many billable hours would be required.

    It’s a strange position to not want to give legal advice to someone who can’t afford legal advice and at the same time be so hesitant because the advice giver fears a lawsuit. The advice receiver cannot afford to sue anyone. It would be demeaning to the profession to say that the reason could be because the lawyer’s inclination is to look for the party who can be found liable; in this situation bad advice would be the tipping point possibly leading to the quickest recovery. So I won’t say that. I’ll choose to be altruistic and say that it’s because many just do not want to give bad or incomplete advice because it isn’t really helpful and could actually harm. A doctor wouldn’t (or shouldn’t) diagnose a patient recklessly, needing varying degrees of information for complete diagnosis. The eventual diagnosis of a legal issue involves a similar evaluation of information. A doctor has the same care for their patient’s health as the lawyer would for the legal rights of the client, more or less. Health care in Canada is quite accessible. Legal “care” is not nearly as accessible, and in some instances completely inaccessible. This shifts the benefit of those law to those who can afford it. A “that’s what insurance is for” attitude would have some people acting recklessly, knowing they could afford protection. This would make the rights of someone else “worth” infringing on, knowing there would likely be absolutely no recourse and very little cost in comparison with the benefit. That’s what worries me.

    Access to the law is very expensive, and I certainly cannot afford it. I can’t afford it because of something someone did to me. I can’t afford to leave and I can’t afford to stay. So while I sat, I hit the books, called law offices with basic questions in the event that it might help me extract an answer from the bigger issues, etc. Even assistance with commonly used legal terms would likely benefit a lot of people.

    I really value the input I’ve received from the lawyers that did take the time to answer questions…especially when I found out how valuable their time really was. In this way, many lawyers were quite willing to help and that’s a great thing. After my issue is resolved, I intend to study to become a paralegal. I really think I’d be able to make a difference this way.

    I took to the material well, so well that people have started asking for my advice. I know enough to know that as someone who provides the advice informally, mine is a statement of opinion and not a statement of fact, so it would be unreasonable to rely on it. 😉 (Nevertheless, I am still cautious of those who might be in a situation similar to the one I was in, yet unable to express it as clearly.)

    November 28, 2014 at 6:49 am

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