ACCESS TO CRIMINAL JUSTICE Divergent Trends in the Legal Profession

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1 ACCESS TO CRIMINAL JUSTICE Divergent Trends in the Legal Profession November 29, 2002 LEGAL SERVICES A LA CARTE Faculty: Stephen Coughlan Unbundling" of legal services is an emerging phenomenon designed to address some clients' inability to afford legal services. The recent increase in the number of self-represented litigants suggests that many people feel they cannot afford legal services. Self-representation creates some risks for the self-represented litigant but is seen as unavoidable or perhaps even desirable by those who do not hire a lawyer. Richard Susskind has described people who would benefit from legal advice but cannot afford it as the "latent legal market". Unbundling legal services is one possible mechanism to tap into this market and has potential benefits for both clients and lawyers. The idea behind unbundling, which is sometimes called "discreet task representation," is that representation of a client can be rationally broken up into a series of discrete tasks. In the normal relationship between lawyer and client, the lawyer is hired to handle a complete file. Unbundling allows the client to retain control over the file. The lawyer performs a limited number of specified services, but responsibility for the remainder of the matter continues to rest with the client. The name "unbundling" refers to the bundle of services being broken up, with the client contracting for each service as required. The potential benefits to clients from unbundled services are reasonably clear. Because the lawyer is providing limited services, the fee is correspondingly lower. Clients are therefore able to afford legal services in circumstances where otherwise they would have had none. Clients should, for example, do a better job representing themselves in court when they have prior advice about what factors the judge can and cannot take into account, or with suggestions about areas of questioning worth pursuing. Lawyers can potentially benefit by tapping into the latent legal market. Although some self- represented litigants might simply prefer not to have a lawyer, many would perceive that there is an advantage in obtaining at least some legal advice. A previously unavailable source of clientele would thus open up to the lawyer. Pursued actively, unbundling presents an opportunity for a form of specialization. Not everyone agrees that unbundling is unambiguously a benefit to clients. Some suggest, for example, that

2 Page -2- legal advice based on incomplete information can fail to be helpful. A lawyer who is unaware of certain basic facts is likely to give advice that is incomplete. A lawyer who is asked only to advise on the form of a settlement offer might not have sufficient information to advise the client on whether it is reasonable. Indeed, some fear that unbundled legal services could actually worsen a client's position. Unfamiliarity with the context, for example, might lead a lawyer to suggest that a client ask questions in court which will actually be harmful rather than helpful. Some argue that these objections are not merely practical but are actually ethical. They suggest that lawyers who unbundle legal services significantly increase the risk of failing to meet their ethical obligations to clients. There are also concerns that "ghostwriting" pleadings could amount to misleading a court about whether a particular litigant is represented or unrepresented. In either case, some are concerned that lawyers who unbundle services increase the risk of complaints or discipline from a law society. Proponents of unbundling argue that these ethical concerns can be adequately addressed. They say it is possible to design an unbundled practice to minimize the risks to client and lawyer. Some standardized steps can help to ensure that good quality service is provided to clients. It also ensures that those clients understand clearly both the services they are receiving and the services they must provide themselves. For example, the recent CBA report The Future of the Legal Profession: The Challenge of Change (at p.80), notes the possibility of a standardized retainer letter. Such a letter would describe all the steps in the successful completion of a matter and would specify whether each step would be performed by the lawyer or the client. Successfully addressing the practical and ethical concerns around unbundling could allow lawyers to reach the latent legal market, to the benefit of both lawyers and clients. THE NATURE OF UNBUNDING The general justification for and nature of unbundling is fairly simply stated. For example, Lord Woolf notes in Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales that: Not all litigants need assistance with every aspect of their case. Some may be able to undertake much of the prepatory and paperwork themselves and need competent advice only at key points in the progress of their case. Initially this could be as to the validity of their claim or defense and the way which they should seek to prove it. This should then be followed up at key stages, particularly in assessing whether an offer from the other side should be accepted... "Unbundling" involves the "bundle"

3 Page -3- of work that has to be done on the case being taken apart and shared between the advisor and the litigant... This would offer a real way forward in making justice accessible and understandable to those on moderate incomes who are currently not eligible for legal aid. The lawyer most frequently associated with the notion of unbundling is Forrest Mosten. He has described the concept in "Unbundling of Legal Services and the Family Lawyer" as follows: Family lawyers generally offer a full service package of discrete tasks that encompass traditional legal representation. More specifically, the lawyer implicitly or explicitly undertakes the following services on behalf of a client: (1) gathering facts, (2) advising the client, (3) discovering facts of the opposing party, (4) researching the law, (5) drafting correspondence and documents, (6) negotiating, and (7) representing the client in court. When a client hires a lawyer, generally both client and lawyer assume that the lawyer will perform these services in a full-service package. The lawyer believes (because of training and experience) that the full service approach is necessary to adequately represent the client's interests. Unbundling these various services means that the client can be in charge of selecting from lawyers' services only a portion of the full package and contracting with the lawyer accordingly. Further, the client may, in some cases, specify the depth or extent of each service. For example, a client may want representation at trial, but may want to handle court filings, discovery, and negotiations without the lawyer. Conversely, a client may seek the advice and support of a family lawyer in negotiating a settlement, but may choose to self-represent or retain another attorney for actual court representation. With respect to service depth, a client may desire a lawyer to "research" the law by making a five minute check of the statutory index. Alternatively, the client might want the lawyer to write an exhaustive research memorandum that could take many hours. Variables determining the type and depth of services include: the extent and accuracy of information given to the client making a choice, personality of the client, complexity of the task, and costs and resources available to do the job. The concept of unbundling is far richer than merely a series of practical suggestions or practice tips. Because family lawyers have been schooled in practicing with the full package of services, breaking up the package may require major rethinking about the lawyer-client relationship. PRACTICAL OBJECTIONS TO UNBUNDLING If unbundling is to provide a benefit clients, the service provided must benefit the client. But if unbundling is to be attractive to lawyers, it must allow for a lesser time investment on the part of the lawyer. Some suggest that the area of overlap between this reduced time spent but benefit provided is small, perhaps nonexistent. James M. McCauley suggests in "The Ethics of Making Legal Services Affordable and Making the Legal System More Accessible to the Public Unbundling of Legal Services: Another Alternative?" that a typical unbundled service might be, for example, reviewing an agreement that a client has negotiated personally: A wife may ask a lawyer to review a separation agreement prepared by her husband's attorney. If the

4 Page -4- agreement is acceptable, she plans on having her husband's attorney proceed with the uncontested divorce. Of course, the lawyer reviewing the agreement prepared by the husband's attorney is at an inherent disadvantage in not being counsel of record in the divorce case. The attorney may be incapable of verifying the marital assets and other information necessary to assess the fairness of the proposed agreement. The "full service" lawyer would consider serving written discovery on the husband's lawyer before passing judgment on the proposed agreement. More generally, others have noted that while it will sometimes be apparent what things a client does not know, in other cases this will not be apparent. Clients receiving unbundled services will be very likely to meet with situations they did not expect, and are not equipped to deal with. At a simpler level, lawyers should not represent a client if they have a conflict of interest, but are less likely to discover conflicts in an unbundled situation. Problems similar to these lead some to argue that lawyers should only provide unbundled services with great caution. ETHICAL OBJECTIONS TO UNBUNDLING Commentators have suggested a number of ethical objections to unbundling. These objections are partly due to perceived failures to clients, but also based on perceived failures in other ways. The practical objections to unbundling lead directly to ethical concerns. A lawyer's primary duty to a client is one of competence: if unbundling prevents competent services from being offered, or at least makes it significantly more difficult to do so, that is in itself an ethical objection. Some suggest that clients are aware that they are trading off more complete service for a reduced fee, and that they are permitted to make that choice. Even given this, however, there are ethical obligations for lawyers. Some bar associations in the United States, for example, have held that lawyers who merely offer advice by telephone on a "hotline" have an obligation to make the limits of their representation clear. Indeed, at least one state has found that a disclaimer of a lawyer/client relationship arising out of such limited advice was not valid. In addition to these objections, however, some other ethical concerns have been raised. A lawyer who unbundles real estate service, allowing the rest to be done by a real estate agent, could be assisting the unauthorised practice of law. The most commonly raised objection, however, has to do with "ghostwriting". Diane Molvig writes: A lawyer might prepare a pleading or other written document for a client, but not represent that client in court. Is this a fraud on the court, who believes that the client is pro se and therefore may make certain allowances because the client is an amateur? Colorado Federal District Judge John Kane

5 Page -5- believed it was in a 1994 ruling, in which he stated: "Having a litigant appear to be pro se where in truth an attorney is authoring pleadings and necessarily guiding the course of the litigation with an unseen hand is ingenuous to say the least; it is far below the level of candor which must be met by members of the bar." Specific objections to allowing the client to appear not to have counsel are that self-represented litigants are typically given greater latitude in court by judges, and even assisted in some ways. In the United States, some rules of court specifically create different standards for assessing the pleadings of a self-represented litigant, for example on a motion to strike. A lawyer who assists a client in preparing for court but then allows that person to appear to be self-represented could therefore be considered to be misleading the court. This has led some states to prohibit the ghostwriting of pleadings, while others insist that pleadings prepared by a lawyer for a self-represented litigant must disclose that a lawyer was involved in drafting them. Codes of Professional Conduct in Canada have not generally been drafted with the issue of unbundling in mind. The CBA's Model Code of Professional Conduct, for example, says in Rule III(3) that: The lawyer should clearly indicate the facts, circumstances and assumptions upon which the lawyer's opinion is based, particularly where the circumstances do not justify an exhaustive investigation with resultant expense to the client. However, unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than merely make comments with many qualifications. As noted in The Challenge of Change at p. 79, this can equally be taken to imply that unbundling should be avoided, or that it is permissible provided the agreement with the client is clear. A discussion relevant to the issues involved in unbundling, though that term is not actually used, can be found in the Law Society of Alberta's Code of Professional Conduct. One of the rules in Chapter Nine of that Code states "2. Except when the client directs otherwise, a lawyer must ascertain all of the facts and law relevant to the lawyer's advice." Commenting on that rule, the Code elaborates: Rule #2: For legal advice to be effective, it must be based on as much information as can reasonably be obtained, keeping in mind the lawyer's obligation to be economical (cf. Commentary G.1(c)(v) of Chapter 2, Competence). Generally, an in depth knowledge and understanding of a client's affairs facilitates the provision of meaningful and useful advice in most situations involving the client. Investigation of the facts by a lawyer may extend beyond information provided by the client. For example, it may be appropriate to interview witnesses; conduct searches at government registries; examine other public records; obtain information from parties connected with the client (such as accountants, relatives or employees); or physically

6 Page -6- inspect the client's business, an accident site, or another relevant locale. It may also be proper to verify questionable information conveyed by a client to prevent unwitting participation by the lawyer in defamation, interference with contractual relations, negligent misrepresentation or other illegality. A lawyer should, however, consult with the client regarding the scope of investigations and should provide an estimate of costs (cf. Commentary 2 of Chapter 14, Fees). The client may feel that the detail requested cannot be provided in the time available or is disproportionate to the importance of the problem in the client's eyes. A lawyer's duties with respect to legal research are similar to those relating to fact gathering. While a lawyer must become familiar with all relevant law, regard must be had for economy and efficiency. If research becomes more extensive or costly than initially estimated or reasonably anticipated by the client, the lawyer should advise the client. The client's unwillingness to pay will not affect the standard of competence demanded of a lawyer and will therefore compel the lawyer to withdraw or to complete the necessary research at no further cost to the client. See Commentary G.1(c)(iv) of Chapter 2, Competence. Occasionally, a client will specifically request that a lawyer provide an opinion or advice based only on limited facts or assumptions or without the benefit of legal research. While it may be proper in some cases to agree, the lawyer must ensure that the client understands the limitations of such advice. Not infrequently, a legal opinion based on limited facts or assumptions will be so restricted and qualified as to be practically worthless. Similarly, advice given without research in an area in which a lawyer lacks knowledge or experience is likely to be unreliable. RESPONSES TO ETHICAL OBJECTIONS The ethical argument in favour of unbundling is that it is appropriate to make services more affordable and available to the public. Although clients can face some additional risks if legal services are unbundled, they can be adequately informed of those risks. In exchange the client receives services at a lower cost, or receives services where he or she would otherwise have had no legal advice. The Ethics Committee of the Colorado Bar Association has suggested that "is the trade-off which is inherent in unbundled legal services". At a practical level, some argue that unbundling actually creates a lower risk of complaints for lawyers. In "Unbundling Legal Services", Dianne Molvig writes: Hornsby points to another reason why he believes unbundling doesn't pose the malpractice threat many

7 Page -7- lawyers imagine. Consider that malpractice claims fall into two general categories, he explains: administrative and substantive. Administrative includes such acts as failing to file in the proper timeframe or not communicating with the client. Such problems don't exist in unbundling, Hornsby contends, because the lawyer is responsible for specific services, per the client's request, not for all the detailed tasks involved in a case. In a sense, "there's no file to screw up, no client to ignore," Hornsby says. As for substantive malpractice, Hornsby believes the risks diminish here, too, because a lawyer providing unbundled services will tend to deal with many of the same legal issues again and again. He compares it to what lawyers discover when they staff their local bar association hot lines. "What we hear from those people is that it's amazing how many times they answer the same question," Hornsby says. He feels the same thing occurs in a high-volume, unbundled legal practice. "The result is greater competence," he notes, "and the ability to avoid malpractice." Many sources also argue that unbundling is not really a new phenomenon: simply one that has recently been named and is receiving more attention. Molvig, for example, says: "Very few people have enough money to pay for all the legal services they could use in a case. So we do less discovery than would be required to turn over every single rock. We hit the high points. We tell the client that if we had unlimited funds, we'd talk to these other three people, but chances are it's not going to make any difference. So unbundling is just a way to be honest and get out on the table what we do in a limited sense now, and to do it in a more organized way." The Colorado Bar Association argues that: Outside the courtroom, unbundled legal services are both commonplace and traditional. For example, clients often negotiate their own agreements, but before the negotiation ask a lawyer for advice on issues that are expected to arise. Sometimes, a lawyer's only role is to draft a document reflecting an arrangement reached entirely without the lawyer's involvement. Clients involved in administrative hearings (such as zoning or licensing matters) may ask their lawyer to help the client to prepare for the hearing, but not to appear at the hearing. In each of these situations, the lawyer is asked to provide discrete legal services, rather than handle all aspects of the total project. Similarly, Lord Woolf points out that the practice already exists in England: "Unbundling" involves the "bundle" of work that has to be done on the case being taken apart and

8 Page -8- shared between the adviser and the litigant... I am well aware that this is something which is already done by law centres and other specialist advice agencies. A different approach is the Law Shop in Bristol where potential litigants can obtain advice and have on-the-spot access to a reference library, books and leaflets, legal forms, fax, word processor and photocopier. A variety of bar associations in the United States have considered unbundling and issues relating thereto, and have concluded that it can be done in a way consistent with ethical duties to the client. In particular, most of those opinions suggest that the key is to fully inform the client. Thus, the client should be aware of the other steps that need to be undertaken beyond those performed by the lawyer. The client needs to know the greater risk involved in being represented for only part of the file. On this point, the Colorado Bar Association suggests that: A lawyer engaged in unbundled legal services must clearly explain the limitations of the representation, including the types of services which are not being provided and the probable effect of limited representation on the client's rights and interests. Where it is "foreseeable that more extensive services probably will be required" the lawyer may not accept the engagement unless "the situation is adequately explained to the client."...the lawyer's disclosure to the pro se litigant ought to include a warning that the litigant may be confronted with matters that he or she will not understand. They suggest further that "a lawyer may not so limit the scope of the lawyer's representation as to avoid the obligation to provide meaningful legal advice, nor the responsibility for the consequences of negligent action." There appear to be no discipline cases in Canada dealing with unbundled legal services, but some discussion of the ethical issues can be found in The Future of the Legal Profession: The Challenge of Change. Mr. Coughlan s report appeared in the Canadian Bar Association s EPIIgram - March 2001: Unbundling Legal Services: Providing Solutions for Unmet Legal Needs.