Unbundled Legal Services in Divorce Cuts Costs

Unbundled legal services is a regime of legal representation in which an attorney and client cut costs by limiting the lawyer’s involvement in a legal action, leaving responsibility for certain aspects of the case to the client.

Unbundled legal services lower costs for the client by reducing the amount of time an attorney spends – and therefore the amount of the attorney bills – on a legal matter, and in an uncertain economy, lawyers use unbundled legal services to expand their client base.

Also known as limited scope representation and discrete task representation, unbundled representation falls into three general categories: consultation, such as giving advice and direction; document preparation, sometimes referred to as ghostwriting; and limited representation in court.

"Clients find unbundling attractive because it saves money and gives them more control over the process and strategy decisions."

“Clients find unbundling attractive because it saves money and gives them more control over the process and strategy decisions.”

Unbundled attorneys may opt for flat fee pricing to complete tasks, as opposed to the more common practice of hourly billing by full-service attorneys. Depending on the jurisdiction, they may provide legal ghostwriting services, such as drafting legal documents on behalf of the client without formally appearing before the court. They may offer legal coaching to clients who plan to represent themselves pro se in the courtroom. Or they might do the opposite, agreeing that clients handle their lawsuits up until the trial phase, at which point the attorney takes over.

Divorce lends itself to unbundling particularly well because it can be coupled with pro se filing in which one spouse files all the divorce paperwork in an uncontested action. The development of unbundled legal services has grown largely out of the family law field.

“A growing phenomenon is changing the face of family law and altering forever the way people approach their divorces,” writes M. Sue Talia in the introduction to her book, Unbundling Your Divorce. “More specifically, it is altering the manner in which lawyers help people with their legal problems. Under the old paradigm, each party to a divorce hired a lawyer (if they could afford one) to handle all aspects of the case, giving the lawyer full responsibility for and power over strategy and tactics. Lawyers call this full service representation. If you couldn’t afford full service, and legal aid was unavailable, you were on your own and out of luck. There was no middle ground. That practice is now being supplemented by innovative methods of delivering legal services, where lawyers provide coaching, advice, drafting, and other forms of legal assistance to help you represent yourself. This means that a lawyer can be retained for only part of a case, or for specific tasks, or even as a coach, showing you how to effectively represent yourself in court.”

Ms. Talia, a California family law attorney, built on the work of Forrest S. Mosten, who wrote in 2000 wrote Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte, which was published by the American Bar Association. Mosten, who minted the phrase “unbundled legal services,” has received the Lifetime Achievement Award for Innovations in Legal Access from the ABA Section of Delivery of Legal Services, and the Lawyer as Problem Solver Award from the ABA Section on Dispute Resolution.

An American Bar Association study estimates that “fewer than three in ten of the legal problems of low-income households are brought to the justice system and only four in ten for moderate income households” According to the New York State Bar Association, “[u]nbundling is seen as a way to increase legal access for middle income consumers…” “Clients find unbundling attractive because it saves money and gives them more control over the process and strategy decisions.”

In some states, the popularity of unbundled legal services is complicated by the fact that it happens under the disapproving eye of the state bar association and other regulatory agencies. While some lawyers view unbundling as taking work away from them, in reality, it’s “an opportunity” to obtain work from clients who would otherwise go without counsel, Talia says. For example, in a family law case, there may be no need for a lawyer’s help to divide the furniture, but those services would be valuable for divvying up stock options or a pension plan, she said.

Limited scope representation can also work well in other areas where “the litigant comes into direct contact with the court system” such as lemon law cases, homeowners’ association disputes or small claims matters, says Talia.

In a growing number of cases, however, it has not only the official endorsement of the regulatory agencies and courts, but also their enthusiastic support. In 2009, Massachusetts’ highest court issued an order expanding a limited scope representation trial program in some of the state’s probate and family courts to the entire state court system.

In a statement , the court said that unbundling legal services “is a proven method for addressing the needs of justice in our 21st Century courts.”  And the California Board of Governors of the California state bar adopted a resolution advocating unbundling legal services, as well as recommending that CLE programming be held on the topic and malpractice insurers provide coverage for it.

“Sometimes as many as 75 percent of domestic relations cases involve at least one party who doesn’t have a lawyer. These choices are frequently driven by financial necessity, as more and more people can’t afford to hire lawyers to represent them in the traditional way. However, two situations are becoming increasingly common: Many people can afford some legal assistance from a lawyer, even if they can’t afford traditional full service. They elect to use a lawyer for the more complex parts of the case, while they represent themselves on the simpler parts. This has the effect of stretching their litigation dollar. In addition, in more and more cases, people who can afford lawyers simply insist on doing it themselves. What they want is for lawyers to tell them how. That’s where limited scope representation, coaching and consulting come in,” says Talia.

Both lawyers and clients now reexamine and redefine the traditional attorney-client relationship as it applies to limited scope representation.

According to Talia, courts and bar associations are increasingly encouraging attorneys to perform unbundled services, in part because of the surge in pro se litigants, which slows down courtrooms and causes delays and headaches for judges.

The American Bar Association’s Model Rules of Professional Responsibility 1.2(c) establish two requirements for ethical limited services representation: informed consent by the client and a determination by the lawyer that the scope of service is reasonable under the circumstances.

“As long as you draw a very bright-line box around the scope of your representation, you should be safe,” Talia said. “But be careful about re-drawing [that box] when the scope changes. Just tell your clients that you would be happy to make a court appearance as soon as they sign the revised client agreement.”

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