Making it Legal: Some Simple Steps for Moving Unbundling to the Next Stage

NSRLP has just collated the results of a short online survey, distributed through social media to lawyers in Ontario whom we knew were offering or considering offering unbundled legal services to family litigants.

The survey, developed at the request of the Ontario Family Legal Services Review, was “live” for just two weeks and has a small sample size – but the almost 50 responses provide a reasonable snapshot of the opinions of both lawyers working with clients using limited scope retainers (65%) and those who remain “on the fence” about whether to offer unbundling as part of their family practice (the remaining 35%).

The most striking finding is that lawyers are still hung up about liability issues – malpractice suits, or complaints to the regulator.

Clarifying liability issues is the most frequently cited concern (79% of responses) about offering unbundled family services – as well as the most highly rated suggestion (75% of responses) to encourage more lawyers to offer these services.

Addressing liability fears

Perhaps you are reading this and thinking, well that’s obvious, why did you need a survey to show this?

Maybe I shouldn’t be surprised that this issue is still hanging around, but I truly am (my naivety showing again perhaps).

Because the fix is simple – if we resist rote thinking and a panic reaction – and instead consider the following – uncontroversial, evidence-based – facts.

Facts

• LAWPRO has been onside regarding covering limited scope work for as long as limited scope work has been around. As Dan Pinnington, Vice President Claims Prevention and Stakeholder Relations at LAWPRO, told me recently in an email, LAWPRO has always covered “Ontario lawyers…for the professional services they provide clients, regardless or whether those services are provided further to full-scope, or limited scope, retainers.” LAWPRO recently launched a new resources page for lawyers offering unbundling which includes retainer templates.

• There is no evidence that unbundling creates greater malpractice risks. The most common causes of malpractice claims are not a failure to know or apply the law (about 10-12% of errors), but lawyer/client communication issues (about 1/3 of claims) and missed deadlines and procrastination (about 18% of claims). (See http://www.practicepro.ca/LawPROmag/Pinnington_Biggest_Malpractice.pdf ). Of course, these issues can arise in unbundled files as well, but there is no evidence that unbundling itself – one scenario often suggested, but for which there is no empirical evidence, is the client will make a legal claim for additional assistance beyond the scope of the retainer – provokes malpractice claims.

• There is no evidence that unbundled services generate more complaints to the regulators. At present, no law society tracks this data, but our own efforts to determine this suggest that unbundling actually generates fewer not more complaints (I wrote about this here). As many lawyers who offer unbundled services will tell you, clients who receive help via a limited scope retainer are usually so grateful to finally have found assistance that the last thing on their minds is a complaint. (I have also been told anecdotally by a number of lawyers that they have far less trouble collecting payment on a LSR than on a regular full representation account.)

Resolving the ambiguity

I understand that as long as there is ambiguity, there is a whiff of danger about unbundling – and why would a lawyer take on something that is new and different and also dangerous?

A properly drafted retainer agreement, something that all lawyers need to be able to do (and there are many excellent templates out there), is already the way to resolve the ambiguity – unless you believe that clients seeking limited scope services are inherently litigious in a way that dramatically differentiates them from other clients (a belief for which there is no evidence).

Comments provided by the survey respondents point to the peripheral problems that also need to be dealt with. For example, there is concern that judges may not understand the LSR and may improperly apply the “lawyer of record” rule (which in Ontario excludes lawyers working on a limited scope retainer). But again, the answer is a simple one – better judicial education.

Replacing passivity with explicit encouragement

The survey asked “what do you think would encourage more lawyers to offer unbundled family law services?” Clarification of liability issues (75%) again topped the poll. But this was closely followed (and most highly rated by the subset of lawyers already offering unbundling) by “the explicit encouragement of the Law Societies” and “the explicit encouragement of the judiciary”.

This means not a passive acquiescence – it’s okay if you do this, but we are not going to talk about it – but an active agenda to promote unbundling on the part of the regulators. This can be done via continuing professional development, in-house support (an “Unbundling Information Service”?) for lawyers who need guidance, and allowing the Lawyer Referral Service to include a new section for unbundling. This is also the most intelligent way to develop best practice standards (who can benefit from unbundling? How best to manage a file that may be an on-again off-again client relationship?) Benchers need to get behind the provision of limited scope services and get vocal – this is the fastest and most significant way that they can enhance Access to Justice for litigants.

Finally, a plea to our most respected and senior judges – please consider stepping forward and starting to talk – at professional conferences, in court, to the media – about how much more functional their courtrooms would be if better-prepared SRLs arrive in to court after limited scope assistance and representation?

No one is going to be forced to offer unbundling – but at present the majority of the legal profession still regards it as a dangerous, freaky innovation. Please let’s get over this and start approaching the use of limited scope retainers in a professional, mainstream, evidence-based way.

And then we can tell the public that the legal profession really does have something valuable and affordable to offer – a service that we can begin to properly market and monitor for best practices.