universal unbundling unfolds in California

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Today is the first business day on which ”unbundled” legal services will be available in all civil cases in California courts (see our posting dated Nov. 1, 2006) Lawyers are now able to make “limited appearances” in every kind of California civil case, performing only the discrete tasks agreed upon by the attorney with his or her well-informed client.   Litigation unbundling is explicitly allowed in only a small number of states — and, in most of them, only in very limited contexts (usually family court and divorce matters).   Therefore, having universal unbundling unequivocally allowed in America’s most populous state is (to use a technical legal term) “a really big deal”.

California Rules of Court 3.35(a) defines “Limited scope representation” as “a relationship between an attorney and a person seeking legal services in which they have agreed that the scope of the legal services will be limited to specific tasks that the attorney will perform for the person.”  Rule 3.36 covers “Noticed representation” — providing procedures for cases in which an attorney and a party notify the court and other parties of the limited scope representation.  Rule 3.37 covers “Undisclosed representation” (including ghostwriting and coaching).

According to The Report on Limited Scope Representation in Civil Cases (39-pp. pdf), which was approved by the California Judicial Counsel in October 2006, limited scope representation can help self-represented litigants to:

  • Prepare their documents legibly, completely, and accurately;
  • Prepare their cases based on a better understanding of the law and court procedures than they would if left on their own;
  • Obtain representation for portions of their cases, such as court hearings, even if they cannot afford full representation; and
  • Obtain assistance in understanding, preparing, and enforcing court orders.

winnersBUtton Courts, too, benefit from unbundling: The Report states, ”Limited scope representation can also reduce the number of errors in documents; limit the time wasted by the court, litigants, and opposing attorneys as a result of procedural difficulties and mistakes made by self-represented litigants; and decrease court docket congestion and demands on court personnel.”

Moreover, unbundling – especially with well-drafted rules and guidance on the topic – can be very good for lawyers. HALT [and shlep] believe that unbundling is “a win-win scenario for lawyers and consumers of legal services.   [Go beneath the fold to find more information on why unbundling is good for lawyers, clients, and courts.  A comprehensive list of services that unbundling can make available to clients on a discrete-task basis is also provided.]

In their April 2005 comments to the Virginia State Bar, HALT explained:

“Consumers gain the ability to tailor the amount and type of legal assistance they receive to their particular legal needs and financial ability. Lawyers receive clarification of what had been ambiguous ethical guidelines in this area. They also stand to benefit financially as a result of being able to offer unbundled services to clients who might have been unable to engage their services for an entire case, but who can afford to hire them to prepare pleadings.”

As of July 1, 2006, unbundling was available in all civil cases in New Hampshire courts.  An article over the weekend in the The Bryan-College Station Eagle, “Legal services go a la carte” (Dec. 31, 2006), looks at one couple’s divorce and describes how unbundling made the process work far better than the “full-representation” (and fully adversarial) traditional method.   Similar to the mediation process, one big advantage for the disputing couple is the ability to retain personal control, while receiving objective information that helps them understand the issues and keep expectations reasonable.  Freeport, Maine attorney Elizabeth Scheffee advised and coached the wife featured in the article, which explains that:

“They also saved money. Scheffee, who pushed for “unbundled” legal services as president of the Maine Bar Association in 2001, said a full-service divorce costs $5,000 to $8,000. But coaching someone like Noyes costs about $1,000 – more if real estate or children are involved, less if the divorcing partners have already negotiated an agreement and just need someone to put it in a legal document.

” ‘My retainer from soup to nuts is four times what it is for unbundling, and it usually needs to be replenished, whereas most of your unbundled clients get a refund,’ she said.”

Supreme Court justices like unbundling, too.  The article noted that “Even at the state Supreme Court, 25 percent to 30 percent of appeals are filed by nonlawyers, Associate Justice James Duggan said. Most are in landlord-tenant actions, small claims cases, petitions filed by prisoners and post-divorce disputes.”  It continues:

“A lot of them are handwritten. I mean, people do the best they can, but our concern is people may have a good issue and they don’t raise it,” Duggan said. “What we hope is those people who are representing themselves will go to a lawyer to help them with a significant piece of the litigation, and that will help the courts.”

Another practical aspect of unbundling is its effect on the willingness of lawyers to accept a client who might not appear to be capable of paying for full-blown divorce representation — which often requires a hefty up-front retainer plus added replenishment. The article explains that:

“The new rules also protect lawyers, said Amherst attorney Honey Hastings. If a lawyer starts a full-service divorce and the client runs out of money, the lawyer has to get a judge’s permission to withdraw if the client objects.

“Now lawyers and clients can sign a contract specifying exactly what they will and won’t do and how much it will cost. If the client stops paying, the lawyer can stop working.”

tinyRedCheck You can get a good idea of the kinds of services that are available with discrete-task representation at the Civil Justice Network’s unbundling page.  A more comprehensive list is provided, as part of Maine Bar Rule 3.4(i) (which explicitly allows limited representation, if the client consents in writing), in a sample Limited Repentation Agreement:  

 a.  Legal advice: office visits, telephone calls, fax, mail, e-mail;
 b. Advice about availability of alternative means to resolving the dispute, including mediation and arbitration;
 c. Evaluation of client self-diagnosis of the case and advising client about legal rights and responsibilities;
 d. Guidance and procedural information for filing or serving documents;
 e. Review pleadings and other documents prepared by client;
 f. Suggest documents to be prepared;
 g. Draft pleadings, motions, and other documents;
 h. Factual investigation: contacting witnesses, public record searches, in-depth interview of client;
 i. Assistance with computer support programs;
 j. Legal research and analysis;
 k. Evaluate settlement options;
 l. Discovery: interrogatories, depositions, requests for document production;
 m. Planning for negotiations;
 n. Planning for court appearances;
 o. Standby telephone assistance during negotiations or settlement conferences;
 p. Referring client to expert witnesses, special masters, or other counsel;
 q. Counseling client about an appeal;
 r. Procedural assistance with an appeal and assisting with substantive legal argument in an appeal;
 s. Provide preventive planning and/or schedule legal check-ups:
 t. Other

Want Ad from shlep: If you are knowledgeable about the California unbundling situation, or are willing to become knowlegeable, and stay abreast of developments, please consider making regular reports to shlep‘s readers on the unbundling experience in that State, as 2007 unfolds.  See our SHLEP Team Page for contact information.  Of course, if you want to provide such services for other states, or nationwide, we also want to talk with you.

blackCheckS See our earlier post on unbundling in Massachusetts, for a list of other states with litigation unbundling.  Click for the NCSC List of State Laws regarding Unbundling. For more, on the subject see UnbundledLaw.org.

NoYabuts p.s. On another topic:  The Anonymous Editor of Blawg Review bundled up this weekend and headed into the blawgiverse, posing as a Lone Mummer for his Blawg Review #89.  Learn about Mummers, and maybe more about “Ed,” by heading over to BR89, where some of the best recent posting on law-related weblogs is aggregated and unbundled.

2 Comments

  1. shlep: the Self-Help Law ExPress » Blog Archive » Colorado Bar Assn: collaborative law is unethical

    March 13, 2007 @ 1:31 pm

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    [...] Prof. Alan Childress contrasts and compares collaborative law with unbundling: ”The goal is to stay out of court.  In this sense it is very different from typical “limited representations,” which are often used to facilitate court matters by prepping witnesses and ghost writing briefs.  But it certainly limits upfront the goals and scope of this particular lawyer-client representation.” He explains the Colorado Opinion: “The problem is perceived as one where the lawyer has agreed in advance to look out for the other client’s interest and is not in a position to urge litigation where that is what may be best for his or her own client.  The opinion’s focus is on the pre-agreement that the lawyers sign and the ways they are limiting themselves in advance, said to be violating the Rule 1.7 duty not to allow third party interests (the other client’s) to materially limit what they would be doing with their own client (like filing a motion in court). ” [...]

  2. shlep: the Self-Help Law ExPress » Blog Archive » NJ Fed. Court bars undisclosed ghostwriting

    March 16, 2007 @ 2:24 pm

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    [...] As we reported on January 2, 2007, Rule 3.37 of the California Rules of Court permits “Undisclosed representation,” including ghostwriting and coaching.  Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.” (emphasis added) [...]

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