A Look at Unbundling of Legal Services
Kathleen Bird1
There is a national trend embracing “discrete task legal representation,” particularly in family law practice. The concept is gaining attention in Missouri.
The legal profession is on the brink of dramatic change in the way legal services are delivered to the public, particularly in domestic relations practice. Pricing legal services based on an advance retainer is causing sticker shock. The public increasingly perceives full service legal representation as unaffordable. This is especially true in family law matters that routinely involve litigation, among the most costly of legal services. Lawyers accepting family law cases are barred from taking cases on contingency, a fee arrangement that allows people of limited means to access legal services in other civil matters.2 With the decline of available legal aid services, particularly for family law matters, low-income citizens have less access to legal advice. Middle class citizens also perceive legal services as beyond their means.3 This is even more critical for women, who earn one-third less than men on a national average, and find the courts have become less willing to award attorneys fees in family law cases over the past four decades.
Sticker shock is swaying a growing number of people toward representing themselves in court. Surveys indicate that Americans increasingly believe that it is possible for “reasonably educated people” to handle their own legal matters.4 With more frequency, they voluntarily eschew full service legal representation in the belief they can adequately represent themselves. Nationally, people are representing themselves in three out of five cases.5 At least one party is pro se in as high as 90 percent of court cases in some areas of the country.6 A recent survey of Missouri judges indicated that the number of pro se litigants is particularly prevalent in domestic relations cases and growing significantly. Eighty percent of Missouri’s circuit clerks report that they deal with pro se litigants regularly.7
The wisdom of requiring the public to choose between full service representation and no representation at all is being called into question.8 The economic realities indicate there is merit in revising pricing and packaging of legal services. Advance retainer agreements for full service representation have worked well for family lawyers in the past, but preclude getting business from a growing segment of the public who cannot afford retainers but have the ability to pay something for limited legal services. The Modest Means Task Force of the American Bar Association (ABA) Section of Litigation pointed to the gulf that exists in the market seeking legal services and the providers available:
Many pro se litigants have enough disposable income to pay for the limited representation they need. The market failure . . . is that the great majority of lawyers do not offer these potential clients the services they need and can afford. . . . Worse, some people pay lawyers an amount sufficient to buy the limited representation they need, but as a deposit for full-service representation. When the client cannot pay a later installment for the full service fee, the lawyer discontinues the legal work. This leaves the client, lawyer, and court frustrated, and converts the former client into a pro se litigant.9
A Sears & Roebuck approach, providing consumers with a variety of levels of service to fit their needs and budgets, will allow more people to have access to legal services.
A concept called discrete task representation, or “unbundling” of legal services, will permit lawyers to accept employment from a population heretofore discouraged by the full service packaging and pricing structure. The concept is being considered across the country and implemented in a variety of ways. California, Colorado, Florida, Maine, Oregon and Washington are in the forefront of actively encouraging discrete task representation, although other states have not embraced the concept wholeheartedly.10 The American Bar Association has also investigated discrete task representation as an option for the delivery of legal services. In 2003 the Modest Means Task Force of the ABA Section of Litigation published the Handbook on Limited Scope Representation that sets forth comprehensive recommendations for addressing the institutional changes necessary to accommodate more flexibility in providing legal services.11 Increased access to justice through discrete task representation is being studied by the Joint Commission of the Supreme Court and The Missouri Bar which is implementing the recommendations of the Supreme Court Pro Se Commission.12
A fundamental concern is whether offering limited representation forces lawyers to bid against themselves, encouraging full representation clients to cross over to partial representation. The ABA report suggests, based on experience to date, that this is not happening. The majority of limited representation clients seem to be converts from those considering self-representation. The real competitors for full service clients are identified as the on-line information services, document preparation services, financial institutions, real estate companies, tax preparation services and accounting firms that are encroaching on the traditional practice of law.13 The trend of increasing pro se litigants, use of Internet legal services, and purchase of legal forms from document preparation services has spread from the coasts into Missouri. The time has come for our legal community to consider discrete task representation.
Offsetting the economic benefits of discrete task representation are practical and ethical concerns in several areas. Lawyers must develop a level of comfort with the ethics of limited representation, advocacy on a limited scope, and worries about malpractice exposure. Forrest S. Mosten, author of Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte, describes categories of services: counselor and advisor; ghostwriter for letters and court documents; negotiation and dispute resolution consultant; coach preparing client for court appearances; and preventive legal-wellness advisor.14 Another method of determining the level of representation required is based on the difficulty of the matter and legal sophistication required. The Access to Justice project, for example, defines three categories for legal assistance to pro se domestic relations litigants: 1) largely mechanical legal services, such as an uncontested divorce with no children or property, uncontested custody cases, and custody cases with absent non-custodial parent; 2) cases calling for limited legal judgment and discretion, such as uncontested divorce with child support issue, modification of custody and access due to change in circumstances; and 3) cases requiring substantial legal judgment and discretion, such as child abduction, division of pension and business evaluation, and custody disputes involving allegations of child abuse or neglect.15
Changes to the Rules of Professional Conduct will be necessary to remove ambiguity and reassure the legal profession regarding its ability to meet its ethical obligations to clients and the courts while engaging in discrete task representation. To enable limited representation practice in court proceedings, some modification of procedural rules will be required. Lawyers will be wary of making a limited appearance without the specific right to withdraw at the conclusion of the representation. The judiciary’s acceptance of limited appearances will depend on support of the benefits derived from providing the public with greater access to legal representation. Without doubt, limited appearances will create a need for some procedural changes.
Currently the Missouri Rules of Professional Conduct allow a lawyer “to limit the objectives of [legal] representation if the client consents after consultation.”16 An agreement concerning the scope of representation must be in accord with the Rules of Professional Conduct and other law.17 In 2003 the ABA Modest Means Task Force recommended best practices for discrete task representation. Three dimensions to be covered in making an agreement for discrete task representation are described in the Handbook on Limited Scope Legal Assistance: 1) identifying “the legal problem for which the lawyer will provide services; 2) [describing] the remedial measures the lawyer will take . . .; and 3) [identifying] the services the lawyer will provide in the process.”18
Without reservation, states authorizing discrete task representation require that the client must give informed consent. Some commentators believe that a lawyer has a duty to assess a client’s ability to utilize limited legal assistance effectively.19 In addition to explaining the risks and benefits of limited representation, the lawyer must agree to provide meaningful legal assistance to the client. The scope of meaningful assistance is a potential malpractice trap for the lawyer who is not fully informed on the extent of the client’s legal problem. For this reason, most jurisdictions limit the lawyer’s obligation in determining the scope of meaningful legal assistance to the facts as represented by the client unless the lawyer has reason to believe the client’s representations are false or materially insufficient. The ABA handbook recommends that the lawyer also alert the client to other foreseeable collateral problems that may arise and the possible need for additional legal advice. The limited scope of representation is another factor that is considered in most jurisdictions when determining the legal knowledge and skill the lawyer must use to competently represent the client.20
Some jurisdictions have created a presumption in favor of limited scope representation when a lawyer and client use an approved written engagement agreement.21 The agreement identifies the tasks the lawyer will perform and those the client declines. The limited nature of the lawyer-client relationship is specifically disclosed, along with the consequences of termination of the limited representation. Establishment of an approved form for limited representation agreements enhances clients’ understanding of what the lawyer will do for the fee negotiated and reassures lawyers that their obligations and liability in the representation are effectively limited.
One of the most commonly sought after discrete task services is for assistance in preparing pleadings. There are a number of difficulties to overcome in offering this service. A lawyer signing a pleading, pursuant to Missouri Court Rule 55.03(b), is certifying to the court that the legal contentions are warranted and the factual allegations have evidentiary support. A lawyer drafting a pleading relying on the unexamined representations of a client should hesitate to vouch for the contents of the pleading given the current obligation to the court. When the lawyer has no ongoing relationship with the client, the need to conduct some investigation to verify the client’s representations drives up the cost of discrete task representation. States embracing discrete task representation limit the lawyer’s certification to the facts and circumstances as represented by the client, unless the lawyer should reasonably believe that the representations are not credible or materially insufficient.22 Although the lawyer will retain the most control over the integrity of the document by preparing and filing the entire pleading, under the current rules that may not be prudent when the scope of representation is limited. Further, the very act of signing and filing a pleading results in a general entry of appearance under Missouri Court Rule 55. A lawyer making an appearance as counsel of record cannot presently limit the scope of representation in the litigation. More ethical and practical questions are raised when the lawyer does not sign the pleadings, a practice referred to as “ghost writing.” In some jurisdictions lawyers have an obligation to the court to disclose authorship and may be disciplined for ghost writing.23 Concerns arise when a pleading prepared by the lawyer is turned over to the client. What additions and deletions are being made in the document now under the client’s control? What happens if the court learns of the lawyer’s involvement and holds the lawyer accountable for the altered content? Jurisdictions implementing discrete task representation usually address these concerns with rules that allow limited appearances and in some cases relieve the lawyer from the duty to disclose assistance provided in drafting pleadings for an otherwise pro se litigant.24
Other considerations aside, a major concern with discrete task representation is potential malpractice exposure. Issues of informed consent, disclosure of the pitfalls of limited services, full description of legal services covered and excluded, and the possibility that the scope of representation can be expanded by external forces, present multiple challenges to be managed in offering discrete task services. The initial reaction of malpractice carriers is bound to be cautious. Experience in other states indicates that the insurance industry is willing to extend coverage to limited representation. The percentage of claims so far have reportedly been fewer in limited representation relationships than for full legal services.25 Clients generally indicate a high degree of satisfaction with discrete task representation. This is similar to the experience when mediation services were included in professional liability coverage and claims made for mediation malpractice were significantly lower than anticipated.
From the judiciary’s perspective, discrete task representation will bring a new category of litigant into the courthouse: the otherwise un-represented litigant. Most jurisdictions authorizing limited representation also allow lawyers to make limited appearances in court. Termination of a limited appearance may or may not require judicial approval.26 Of primary concern is the extent to which withdrawal of counsel can occur without prejudicing the interests of the parties. Understandably, judges will also be reluctant to see a lawyer withdraw from representing a party. The usual pro se litigant’s lack of knowledge of the law and procedural rules imposes burdens on the courts. Court staff struggles with how to be of service in discerning the difference in providing legal information and legal advice. Judges are faced with the dilemma of how to deal with the pro se litigant in the courtroom without departing from their judicial role as impartial decision maker and frustrating pro se litigants’ access to justice through strict application of court rules.27 Judges much prefer to have represented litigants in their courtrooms. For discrete task representation to become a reality, lawyers will need the power to withdraw from a case when their services are concluded. The judiciary, on the other hand, will need to create policies and procedures that recognize the benefit of partial representation as opposed to no representation at all. It may be helpful to bifurcate hearings in order to honor the limited scope of representation and resist attempts by opposing counsel to broaden the scope of representation. Judges should be encouraged to clarify the issues covered by the limited scope of the representation and be aware of how continuances, delays and docketing affect the cost of legal services. Service of notice and communications with parties are important issues that will have to be addressed. In Missouri, service of notice is appropriate upon a lawyer who makes an appearance in the case. Communicating with a party represented by a lawyer is restricted. When the party is utilizing discrete task representation, the appropriate way to handle communications can be confusing. Court clerks will need new procedures for reflecting the representational status of litigants and how and when to communicate with counsel and the parties. In jurisdictions with the option for discrete task representation, a party with limited representation is considered un-represented for the purposes of service and communications. Colorado does not permit counsel for another party to give any advice to a pro se party other than to obtain legal counsel. A lawyer acting within a limited scope must provide other counsel with a written notice of the time period within which communications may be made with the pro se party’s lawyer under the scheme in Maine and Washington.28
Competing interests between the bench, bar and clients will have to be negotiated. Judges surveyed for this article predominately desire to know whether a lawyer’s assistance was provided in drafting pleadings and judgments. This assists them in determining the extent of the party’s knowledge about legal rights and legal issues and how much further inquiry is necessary to ascertain that the appropriate issues are addressed by the court. Lawyers and clients engaged in limited scope representation, on the other hand, have an interest in limiting disclosures of the scope of representation to protect the integrity of their limited relationship and to control exposure to cost overruns.
A gauge of what can be expected is found in a survey conducted by the Supreme Court of Florida one year after implementing rules authorizing limited legal representation in 2003.29 No disciplinary complaints had been received since implementation. Seventy-five percent of the lawyers responding were positive. They raised concerns for the burden of limited appearances by multiple lawyers in the same case and the need for judges to be more flexible on granting continuances so that litigants can obtain competent counsel. Half the judges responding who had experience with limited appearances reported a positive experience and supported the effort to help clients with limited funds. Several indicated that lawyers needed to have better understanding with their clients on their limited role in the litigation. The other half of responding judges were concerned that the scope of representation was unclear and expressed discomfort with limited representation. Lawyers had inadequate understanding of the notice procedures for making a limited appearance and often disregarded filing the required notice at all. Clearly, the road to full implementation has its challenges. Florida’s monitoring committee stressed the need for more outreach and education for the public, bench and bar.
Unanswered questions in the gray areas of discrete task representation are making lawyers reluctant to forge ahead, even though limited representation is already authorized by the Rules of Professional Conduct. Many lawyers are trying to hold the line on increasing legal fees, often to the detriment of their own bottom line. The cost of legal services, however, continues its upward trend. This poses a hardship for lawyers who must refuse fees available for limited services, and for Missouri citizens who find it increasingly difficult to afford legal assistance. The integration of discrete task representation is worthy of our attention.
Footnotes
1 Kathleen Bird, a graduate of Southern Methodist University School of Law, is director of dispute resolution services for the Seventh Judicial Circuit, a member of The Missouri Bar Family Law Section and vice-chair of The Missouri Bar ADR Committee. She previously engaged in general practice in Arkansas and was a board-certified family law specialist in Texas.
2 Rule 4-1.5(d).
3. National Center For State Courts, How The Public Views The State Courts: A 1999 National Survey 23 (1999); Missouri Supreme Court Joint Commission To Review Pro Se Litigation, Report To The Supreme Court Of Missouri & The Missouri Bar 17-18 (Sept. 2003).
4 Id. at 25; Missouri Supreme Court Joint Commission to Review Pro Se Litigation 17.
5 Access to Justice: Meeting the Needs of Self-Represented Litigants, Executive Summary (2002) available at www.ncsconline.org (last visited on Dec. 2, 2006).
6 Handbook on Limited Scope Legal Assistance, ABA Section of Litigation, Report of the Modest Means Task Force (2003) at 8.
7 Missouri Supreme Court Joint Commission to Review Pro Se Litigation at 10-11.
8 “[T]he law has never foreclosed the right of competent, informed citizens to resolve their own disputes in whatever way may suit them.” Lerner v. Laufer, 819 A.2d 471, 482 (N.J. Super. Ct. App. Div. 2003). N.J. Rules of Prof’l Conduct 1.2(c) expressly permits an attorney, with consent of the client after consultation, to limit the scope of representation.
9 Handbook on Limited Scope of Legal Assistance at 9-10.
10 See www.unbundledlaw.org for extensive list of activities by state (last visited December 27, 2006).
11 Available at www.abanet.org/litigation/taskforces/modest/report.pdf.
12 Missouri Supreme Court Joint Commission to Review Pro Se Litigation at 38-40.
13 Handbook on Limited Scope Legal Assistance at 11.
14 Forrest S. Mosten, Unbundling Legal Services, A Guide To Delivering Legal Services a la Carte 46 (ABA Law Practice Management Section 2000).
15 Michael Millemann, Nathalie Gilfrich & Richard Granat, Limited Service Representation and Access to Justice: An Experiment, 11 Am. J. Fam. L. 1, 5-6 (1997).
16 Rule 4-12(c) and comment.
17 Id. Specific objectives or means may be excepted if imprudent or repugnant to the lawyer. Model Rules of Prof’l Conduct 1.2 (2003) adds cost as a factor that might justify limited representation.
18 Handbook on Limited Scope Legal Assistance at 67.
19 Keef v. Widuch, 747 N.E.2d 992, 998 (Ill.App. 2001). See also Mary Helen McNeal, Having One Oar or Being Without a Boat: Reflections on the Fordham Recommendations on Limited Legal Assistance, 67 Fordham L. Rev. 2617 (1999) and Rule 4-1.4(b).
20 Comment 7 to ABA Model RPC 1.2(2002), Me. Bar R. 3.6(a)(2); Wash. Ct. C.P. R. 11(b).
21 Me. Bar R. 3.4(i); Wy. R. Prof’l Conduct 1.2 Appendix I (2002).
22 Nev. R. Civ. P. 11(b); Wash. Sup. Ct. Civ. R. 11(b).
23 For example, in Colorado a lawyer must disclose assistance by signing pleadings unless helping a pro se party fill out court promulgated forms, but disclosure of drafting services does not constitute entry of appearance. Colo. R. Civ. P. 11(b).
24 Colo. R. Prof’l Conduct 11(b); Cal. Ct. R. 5.70(a) & (b); Nev. R. Prof'l Conduct 4.2(b).
25 Handbook on Limited Scope Legal Assistance at 52. Although there are few cases, claims result from breakdown in communication between lawyer and client, expansion of scope without a new written agreement, and failure to advise the client on related issues. M. Sue Talia, Unbundling Webinar, available at www.selfhelpsupport.org (last visited on May 17, 2006).
26 In California, a withdrawal after limited appearance is subject to a hearing if the client objects. Cal. Ct. R. 5.71 (renumbered). Washington lawyers are not required to sign pleadings or disclose involvement if providing drafting assistance to an otherwise pro se litigant. Wash. Super. Ct. Civ. R. 11(b). Lawyers may enter a limited appearance for particular proceedings. At the conclusion of the proceedings, the lawyer’s role terminates without leave of court upon the filing of a notice of completion of limited appearance. Wash. Super. Ct. Civ. R. 70.1; see also Fla. Fam. Law R. P. 12.040 (2004). Wyoming does not require the filing of a notice. A lawyer is deemed to have withdrawn when the lawyer has fulfilled the duties of the limited entry of appearance. Wy. Uniform R. 102(c).
27 As more cases involve pro se litigants, our courts face challenges in protecting Missourians’ constitutional access to courts of justice “open to every person.” Mo. Const. art. I § 14, and the admonition not to overindulge them. Boyer v. Fisk, 623 S.W.2d 28 (Mo. App. E.D. 1981).
28 Colo. R. Prof’l Conduct 4.3; Me. Bar R. 3.6(f); Wash. Rev. R. Prof’l Conduct 4.2(b). See also Fla. Fam. Law R. 404.2(b) and 4-4.3(b) and Nev. R. of Prof’l Conduct 4.2(b) and 4.3(b).
29 Report of the Unbundled Legal Services Monitoring Committee, Supreme Court of Florida, Mar. 2005. See http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/B591E315F65F20FC85256FE1007766E3/$FILE/SpecialUnbunLegalServMonitorRpt..pdf?OpenElement.