Unbundling dos and don'ts for family lawyers
Many lawyers, and family law lawyers in particular, are reluctant to provide and promote unbundled legal services. I know, because I was once one of those lawyers.
I was concerned that providing piecemeal legal services would be a disservice to my clients, that it was unprofessional, and that it increased the risk of professional liability. I believed that a family lawyer assisting a client with parts of her/his case and not assisting them with their entire case would harm or prejudice the matter.
But I now know that providing unbundled legal services is critical to improving access to justice for those who cannot afford a lawyer on a full retainer. It is necessary to adapt to the changing legal industry landscape, and there are steps that can be taken to ensure the services are provided in a way that protects both the client and the lawyer.
Unbundled or piecemeal legal services are delivered by a lawyer in an a la carte manner, where the demands associated with the client’s legal matter are broken down into specific tasks. The lawyer will perform one or more of those tasks while the client remains in charge of the case and handles everything else.
This allows clients the opportunity to retain control of their case, pay only for specific legal services they can afford, receive legal advice to make informed decisions and access legal services to protect their interests. This approach to the delivery of legal services is critical now more than ever as more individuals are representing themselves in family law cases.
I now provide and promote unbundled legal services as a family lawyer and a collaborative divorce lawyer, which is by definition a type of unbundled legal service. In fact, most of my current files are limited-scope retainer files where I provide unbundled legal services, such as legal advice and written opinion, case strategizing, coaching, document preparation, review and editing, and attending discoveries, hearings, mediation and arbitration. Unbundled legal services can be provided at any stage of a matter; prior to the start of a court action, during negotiations, mediations, arbitration and hearings.
Research shows that most self-represented litigants are looking for affordable legal services. They are not simply choosing to represent themselves; they are doing it out of necessity. Most self-represented litigants wish they had some legal advice and representation, even if that is on a limited retainer basis.
Even those who prefer handling their own legal matter want to have better understanding of their case and recognize that receiving legal advice and services is necessary to protect their interests. Providing unbundled legal services will give self-represented litigants the opportunity to make informed decisions about their case within their financial means.
However, it is critical that there is a clear understanding between the lawyer and client and that these services are provided in a measured and thoughtful manner. Unbundled does not and must not mean less-competent or low-quality legal services. It is also important to recognize that unbundled legal services may not be appropriate for some matters and clients.
To help lawyers with how to best engage in unbundled legal services, here are a few dos and “don’ts” for those contemplating the arrangement.
- Conduct a full intake process: This should include discussion about whether unbundled legal services are appropriate, and if so which services will be performed by the lawyer. This process should be a collaboration between the lawyer and the client, where the client is left informed about their legal matter and, as a result, empowered to make informed decisions and take action
- Written limited retainer agreement: This should clearly set out which services will be provided and which will not, and should be signed by you and the client.
- Tell the judge: If you are attending court, make it clear that you are not the lawyer of record. The same goes for signing agreements or court orders. Include a statement that details the nature of your retainer, along the following lines: “I am not counsel of record. My retainer is limited to the court application that gave rise to this order.”
- Send a completion letter: This lets the client know when your role on each retainer agreement comes to an end.
- Forget to tell the opposing party: After discussing with your client, let the opposing party or their counsel know about your limited retainer. Make sure to distinguish between the aspects of the matter which they should communicate with you about, and those for which they should communicate directly with the client.
- Jump in blindly: Don’t take on a legal matter on a limited retainer unless you are confident your involvement will not have an adverse impact on other claims in the case. If you believe there might be adverse impact discuss it with the client and get their instructions on how to proceed in writing.
- Neglect your client: Check in regularly to make sure they understand your role throughout the retainer.
- Overstep the mark: Remain firmly within the boundaries of the limited retainer. If your client wants you to do another related or unrelated matter, it will need a fresh limited retainer agreement for the new task or issue.
I hope this information will encourage family law lawyers to provide unbundled legal services to improve access to justice and embrace the changing legal industry landscape where the provision of legal services do not need to be an all-or-nothing proposition.