f/k/a . . . the archives

August 23, 2003

No Need for Unbundlephobia

Filed under: pre-06-2006 — David Giacalone @ 10:52 am

MyShingle’s Carolyn Elephant is asking “Will Unbundling Lead to a Bundle of Malpractice?”  (Aug. 22, 2003).  Carolyn points to an article from the August 2003 ABA Journal, entitled Loosening Ties – Unbundling Legal Services.
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With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks.   While applauding the ability of unbundling to expand access to legal services, Carolyn is concerned over the ethical and malpractice ramifications of unbundling.   For example, she asks Carolyn asks how far an attorney can go in a limited representation agreement, wondering whether, “For instance, under the existing standards of professional responsibility, could an attorney agree to appear for a client in court but have the client handle the case investigation and discovery?”
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Carolyn also cautions that “so long as the prospect of malpractice and bar complaints remain a threat, solo and small firm attorneys must proceed cautiously in entering into unbundled arrangements.  She is certainly correct that (emphasis added):
[A]ttorneys should never agree to “unbundled” service on a “handshake.” Unbundled services is one arrangement that demands a clear retainer agreement laying out the scope of the attorney’s representation – otherwise an attorney who chooses to act as a “nice guy” and “look over a contract” or dispense some advice is destined to finish last.
Luckily, for attorneys who sincerely want to offer  or consider unbundled services (as opposed to those who are looking for excuses to refuse such clients and stifle the growing movement), there are some good Sample Unbundling Retainer Agreements readily available online at the Unbundled Law Services website, which advises that  “An essential part of an ‘unbundled’ legal services practice is a clear, detailed list (signed by the attorney + the client) which specifies which services the attorney will provide (and those s/he will not provide).”   Included are links, for example, to:
  • a Retainer Agreement that is part of Maine Bar Rule 3.4(i)
  • Model Composite Form – drafted by the University of Maryland School of Law Professor, Michael Millemann
  • a sample retainer agreement that has been used in California family court matters
As far as ethical issues are concerned, it is clear that a trend exists to clarify the attorney’s (already existing) right to enter into discrete-task relationships with willing and well-informed clients.  For example:
1) the new ABA Model Rule 1.2(c) states that “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” and the related Comment on Agreements Limiting Scope of Representation explains (emphases added):

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. . . . A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

2) The Comment to Model Rule 1.1 (Competence) notes, regarding Thoroughness and Preparation, that  “[5] . . . An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
3) The Comment to Model Rule 1.8 on Limiting Liability and Settling Malpractice Claims clarifies that “[14] . . . . This paragraph does not, however, . . . prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.
Your editor believes that the main barrier to unbundling over the centuries has been the profession’s desire to protect its financial position (and to craft ethical restrictions to support those interests), rather than valid issues of professional responsibility and client protection.   Lawyers have dismissively said “We can’t do that,” as opposed to “Here’s what you need to consider before you and I consent to limiting my role.”  Because performing discrete tasks for clients is still rather new, there are likely to be issues to be worked out relating to ethical responsibilities and malpractice exposure.   But, none of these problems are insurmountable.   Solo and small firm practitioners can and should be working to draft appropriate rules and sample forms that will assure a healthy environment for the growth of unbundling.
Before leaving this topic, howerver, I must disagree with one implication in the Aug. 22nd MyShingle posting.  Carolyn states (emphasis added):
First, attorneys must try to discern whether clients seek unbundled services because they lack resources for full service or are freeloaderto complain to the bar (if not file a malpractice suit) if the lawyer does not live up to expectations.

Many Americans who can “afford” full service legal representation nonetheless want to uses who seek free advice and are simply too cheap to hire a lawyer. The freeloading clients will probably expect much more assistance in an unbundled arrangement than a lawyer is willing to provide – and are likely the unbundling option.
Many Americans who can “afford” full service legal representation nonetheless want to use the unbundling option.  They not only do so in good faith, but they have the absolute right to seek and receive such limited engagements with their lawyers, no matter how wealthy they may or may not be.  Lawyers are agents and fiduciaries, whose job is to serve the client’s wishes, unless to do so puts the client at unacceptable risk.  Lawyers are not licensed leeches, permitted to suck as much blood from their clients as is available.   Clients are not freeloaders if they say either “I want to participate as much as possible,” or “I want to leave a little money for me.”
  • Thanks (Aug 22, 2003) to Jerry Lawson at eLawyer Blog for quoting from and pointing his visitors to our posting Pro Bono is Not the Answer to the Access Problem.

4 Comments

  1. David: You’re right about the freeloading comment. Many clients seek to use unbundling in good faith and of course, should be allowed that option irrespective of resources. However, as any solo will tell you, there are some clients who do want to take advantage of a well intentioned or novice lawyer who is willing to offer unbundled service and get more than what is offered. (just as I’ll be the first to admit there are lawyers and other professionals who will take advantage of and gouge clients on bills). It’s this subset that should be avoided.

    Comment by Carolyn Elefant — August 23, 2003 @ 6:37 pm

  2. David: You’re right about the freeloading comment. Many clients seek to use unbundling in good faith and of course, should be allowed that option irrespective of resources. However, as any solo will tell you, there are some clients who do want to take advantage of a well intentioned or novice lawyer who is willing to offer unbundled service and get more than what is offered. (just as I’ll be the first to admit there are lawyers and other professionals who will take advantage of and gouge clients on bills). It’s this subset that should be avoided.

    Comment by Carolyn Elefant — August 23, 2003 @ 6:37 pm

  3. As usual, Carolyn, we are in agreement.
    Free riders exist in every segment of every society, I would suspect.   We all need to be a little wary and to try to avoid doing it ourselves, while building it into the overhead of life.  [I just resisted the temptation to rail again about Tax Whiners.]

    Comment by David Giacalone — August 23, 2003 @ 9:07 pm

  4. As usual, Carolyn, we are in agreement.
    Free riders exist in every segment of every society, I would suspect.   We all need to be a little wary and to try to avoid doing it ourselves, while building it into the overhead of life.  [I just resisted the temptation to rail again about Tax Whiners.]

    Comment by David Giacalone — August 23, 2003 @ 9:07 pm

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