shlep: the Self-Help Law ExPress

 This morning, Andrew Bluestone of the NY Attorney Malpractice Blog pointed to yesterday’s shlep posting on unbundling.  We had included Forrest Mosten’s quote: “legal malpractice insurance carriers are looking to write policies for lawyers to unbundle and are hoping to give lower rates for lawyers trained and competent in the area.” 

Andrew said “We have never heard of this before,” and that reminded me just how chilly New York State’s bar has been toward unbundling.  Because the primary offices of about 120,000 active and retired lawyers (10% of the nation’s total) are in New York State, and because it is my home state, I thought I should take this opportunity to complain a bit about the NYState of affairs when it comes to limited representation in litigated matters.

As we’ve reported, many states have been embracing the use of unbundled, “discrete task”, services in order to increase access to justice in civil matters for the poor and middle class in America, and assist pro se litigants.  See, e.g. “California Expands Unbundling to all Civil Cases (Nov. 1, 2006), and Mass. project allows limited court appearances” (Oct. 29, 2006), which lists other states.  Despite progress elsewhere, Rochelle Klempner’s presentation to a May 2006 Conference on Access to Justice for the Self-Represented (which was hosted by the NYS Courts and included a session on Unbundling), noted that “To date, New York has neither adopted nor proposed any changes to its Disciplinary Rules or Civil Practice Laws and Rules.”  Her paper, “Unbundled Legal Services in Litigated Matters in New York State (May 2006, 14 pp. pdf) looks at the history of the issue in the State, and explains that:

“[M]any in New York agree that unbundled legal services is a sound mechanism to provide poor clients with greater access to the justice system. However, there is concern that unbundled legal services may not be appropriate in litigated matters. The debate surrounding widespread use of unbundled legal services in litigated matters focuses primarily on whether or not attorneys should be permitted to make limited court appearances, and under what conditions attorneys may draft court documents, on behalf of otherwise self-represented litigants. There are significant procedural, ethical and administrative issues to consider.” 

It is telling, I believe, that Klempner’s paper is subtitled “A Proposal To Test the Efficacy through Law School Clinics.”  It seems that the best hope for making unbundling palatable to the NYS Bar is to focus on programs to help the indigent.  That is reminiscent of the NYSBA approach to mediation circa 1990 — it was only supported by the Association in non-profit community centers that used volunteer mediators, and not as a service for the broader public who were expected to hire lawyers for divorce and other matters beyond small claims court.

  The Bar’s reluctance to support litigation unbundling can be seen in a Report that should have been the ideal vehicle to embrace the concept.  In Decmber 2002, the NYSBA Commission on Providing Access to Legal Services for Middle Income Consumers released its Report and Recommendations on “Unbundled” Legal Services (2002, 14 pp pdf).  To put it mildly, the Report was a disappointment to consumer advocates and all those who believe that the Middle Class very often cannot afford “full-service lawyering” and should not be required to take it or leave it. 

The NYSBA Unbundling Report’s “recommendations” included:

• “Limited appearances in litigated matters should not be permitted as a general matter” (with an exception for work done for legal services programs for the indigent) and
• “Malpractice liability arising in unbundling is covered by a standard professional liability policy provided the lawyer has an engagement agreement clearly stating the limited scope of the services.” (see pp. 11 – 12 for a discussion of malpractice insurance coverage and liability risk and avoidance)

The Report gives this explanation: “The Commission believes that unbundling in a litigated matter raises significant practical and policy difficulties, and could generally prejudice the administration of justice and raise ethical concerns regarding competence.”

 Unfortunately, the very same themes were adopted by the New York State Office of Court Administration, after it held a round of meetings across the State, in 2003, on how to increase pro bono activity by the Bar — and got an earful of negativity on the issue of limited representation in litigation.   Their Report, The Future of Pro Bono in New York (January 15, 2004) notes that at least six other states have made rule changes to accommodate unbundling and that unbundled legal services can apparently “be beneficial in promoting pro bono service by attorneys.”  But, it goes on to say:

“However, because there are many unreconciled viewpoints throughout the State, we do not recommend that rule changes be implemented at this time to allow for limited appearances by attorneys in litigated matters.”

Even though the Report proposed four tiny pilot projects across the state to experiment with unbundling, the following paragraph demonstrates the lack of enthusiasm for unbundling:

“Even in the most ideal situation, participants [viz, members of the legal community] saw obstacles in implementing limited representation in New York. In particular, concerns were raised about the unfamiliarity of attorneys and judges regarding unbundling. Many participants were not convinced that attorneys would more readily perform pro bono under an unbundled system because it is contrary to their training. They believed that attorneys would be unwilling to step into a case after a litigant has appeared pro se or where work was done by another attorney, and for fear of not being able to step out of it. Concerns about malpractice and ethics also were repeatedly voiced.”

See ethicalEsq‘s take at f/k/a: NYS’s Disappointing Pro Bono Report (Jan. 17, 2004).  My alter ego stated, for example: “With all due respect, this sounds like over-cautious foot-dragging and paternalism — the guild mentality that we complained about last September.

My check today at the NYS Bar Association’s website found no further progress on the unbundling issue.  Changes Proposed, in 2003, to the State’s Code of Professional Responsibility that would have made unbundling acceptable were apparently rejected by the House of Delegates.  Isn’t it about time New York’s lawyers stopped finding excuses for avoiding unbundling and started to find solutions?  Putting the client’s interests first must mean — in great part — organizing the services offered to clients to accommodate their needs and wishes, rather than insisting that only Lexus-grade services are appropriate for consumers who need or want to continue driving their Honda Civics, and don’t want to have to take the bus after hiring a lawyer.

If NYS bar groups or lawyers want to learn more about unbundling, we suggest

• Handbook on Limited Scope Legal Assistance, by The Modest Means Task Force of the ABA’s Section of Litigation (an155-page document that is a “soup-to-nuts” guide for the practitioner)AN ANALYSIS OF RULES THAT ENABLE LAWYERS TO SERVE PRO SE LITIGANTS, A White Paper by the ABA Standing Committee on the Delivery of Legal Services (April 2005)
• The f/k/a posting No Need for Unbundlephonbia (Aug. 23, 2003) and resources listed in this prior post from shlep.