Unbundling “Unbundling”: Separating the Myths from the Realities

Unbundling “Unbundling”: Separating the Myths from the Realities

There is a noticeable increase in the amount of legal services being openly offered via limited-scope retainers or as unbundled legal services.

  • More lawyers are advertising that they will offer unbundling
  • There are more seminars and continuing legal education sessions on unbundling

This is music to the ears of the thousands who are primarily self-represented people because they cannot afford full representation.

It is also critical to the future of access to justice. As the UK Civil Justice Council reported in 2011 – and this is just as true in Canada, the US and Australia –

“It is a reality that those who cannot afford legal services and those for whom the state will not provide legal aid comprise the larger part of the population of England and Wales. Thus for most members of the public who become involved in legal proceedings they will have to represent themselves.”

Innovation is followed by fear

It is a familiar cycle to see the uptick of innovation followed by the expression of fears and anxiety – even the promulgation of speculation and myths.

So this is an important time to name the pervasive myths that have, for so very long, stymied the development of a legal services model other than the retainer/ full representation model These myths are reinforced and repeated by those genuinely afraid of this development, or unwilling to see any change in the status quo.

We may not have enough experience to give us the data to definitively lay this speculation to rest.

But as unbundling expands, we should be ready to separate what we already know, from what we do not yet know, from what we may fear.

Myth One: Only Full Representation is Competent Legal Service

There are and will remain some clients for whom full representation is the only model that will enable them to participate in the justice system in a fair way (as well as some who are able to continue to pay for this level of service).

But there are other clients – some of whom are primarily self-represented – for whom some assistance is a great deal better than none, and for whom this type of limited assistance could be offered in a fully competent and professional manner.

Concerns about restricted practice being a breach of professional competence standards are a red herring. Eleven US states have considered this question (in relation to collaborative law) and all but one – later overruled by the ABA – upheld limited-scope practice as fully ethical. In Canada, LawPRO (onside for limited-scope retainers for some years now) agrees.

The most important takeaway – ensure that your client gives informed consent. Competent legal service is possible in a limited-scope retainer – it simply takes care to establish what the parameters of that assistance will be, and exactly what clients should and should not expect.

Rules of court in Canadian provinces are now starting to recognize the limited-scope retainer lawyer is not the lawyer of record (for example, Alberta Rules of Court 2.27).

Myth Two: Clients cannot understand the restrictions of limited service

In a limited-scope arrangement, only certain delineated services will be provided to the client. For example, if they contract only for document review, this lawyer will not represent them court.

This Myth suggests that clients are incapable of understanding limited-scope services. So when the client contracts only for document review, he or she will be indignant when the lawyer does not show up in court.

This Myth is dismissive and even insulting in its attitude towards client intelligence.

It is perhaps not a coincidence that this Myth is also supported by the “trust me, we know what is best for you” (and that’s full representation) school of thought.

This Myth may say more about the lawyer’s poor ability to explain their services than the actual intelligence and “consumer savvy” of clients.

Instead of assuming that clients will not understand, perhaps we should get better at explaining? Lawyers are not famously good at explaining their services in traditional full representation contracts either. One third of professional conduct complaints are for communication issues, including lack of informed consent.

21st century justice consumers are savvy shoppers. They are accustomed to surfing the Net for bargains and sizing up EBay deals. They are more than capable of understanding a limited-scope retainer or fixed-fee service that is properly explained to them.

The best response to this Myth resides in the already substantial ink spilled over the need for clear management of client expectations and obtaining client consent (Myth One, above).

Myth Three: Unbundling carries a substantial risk of complaints and negligence suits

This Myth flows from and is reinforced by Myths One & Two. That is, that client who signed up for document review will be outraged that “their” lawyer did not appear at their hearing to represent them – and will sue/ file a misconduct complaint (Myth Two, above).

Or – in a more sophisticated and credible version of the same Myth – the client may be disappointed in some aspect of the assistance they received via unbundling, either because they failed to provide all the necessary information, or because the lawyer was not paid to read all the information that was critical to appraising the best possible advice.

It is certainly possible to imagine that this could be a problem. But a similar dilemma faces many problem-solving professionals, and they manage to deal with. And does this mean that lawyers cannot help at all unless they have every detail? To place such a weight on due diligence may make it impossible for lawyers to offer practical, affordable assistance to the majority of Canadians.

Moreover – and this is important – there is no evidence to show that there is a higher rate of complaints (or lawsuits) when lawyers offer limited-scope retainers.

In fact, there is no Canadian data at all because no provincial law society tracks this information (although NSRLP has often suggested that they do so).

And in an informal “audit” of their files 2 years ago, two provincial law societies informed us what we had long suspected – that they had no complaints at all from clients about limited-scope retainers.

Myth Four: Offering unbundling as a part of your practice means that you will never establish yourself as a credible practitioner

I have heard from many young lawyers in the last few years that their enthusiasm for offering unbundling or legal coaching was squashed by their mentors/ senior lawyers in whom they confided their plans.

“Unbundled legal services? Don’t touch it with a 10-foot pole” they are warned. Followed by an exposition of any or all of the previous three Myths.

Why are more senior lawyers giving this advice? It is possible that they may believe the Myths. However as a profession that prides itself on being evidence-based profession, that seems an unlikely explanation for such dire warnings.

From face-to-face discussions about unbundling with bar associations across Canada and the US I have observed another critical portent – that somehow offering anything other than full representation is disloyal to the profession.

Don’t rock the boat. Let’s leave it the way it is. This way has always worked for us.

The future of unbundling

Because we do not yet have much experience – at least in Canada – of open unbundled practices which are also openly monitored – we do not yet have the data to finally put to rest the speculation and inform our reality.

But we owe it to the public – both the current and future clients of legal services – to offer the services that they say they need, and can afford (see The National SRL Study 2013). Innovation always carries some risk, and so does unbundling.

But we can address these, if we care enough about Access to Justice to try. And many of them may turn out to be just…myths.

 

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