The concept of unbundled legal services has been recognized as a measure to improve access to justice for those who fall into the wide and growing gap between Canadians who can afford full representation and those who qualify for legal aid.
Unbundling (or limited scope representation) is an alternative fee arrangement in which a lawyer provides legal services for part, but not all, of a client's legal matter, with the full understanding of the client. For example, a lawyer may provide behind-the-scenes legal coaching or strategizing ahead of a discovery meeting. Or, they might prepare, review or edit documents. The client maintains control over their case and pays for the legal services that they can afford. While far from a complete solution to the access to justice crisis, unbundling offers an approach that can help curb the alarming number of litigants who are showing up to court without any expert assistance at all.
As a 3L, and for the last two years a research assistant for the National Self-Represented Litigants Project (headed by Julie Macfarlane), I have done significant research around this issue. Unbundling services does more than provide lawyers with a non-pro-bono option to contribute to access to justice. It also opens the legal community up to a vast, untapped market of clients: those who are currently self-representing because no one will accept their money if it’s not in the form of a full retainer. Unbundling provides lawyers with a flexible, financially and morally rewarding alternative to the full representation model, which some argue (for a variety of reasons) is on its way out the door.
So why not be on the forefront of a fee arrangement that promotes access to justice and allows lawyers to attract a new market of clients? Unfortunately, the legal community has not yet committed to unbundling as a mainstream client service.
Lawyers avoid unbundling for one big reason: fear of liability and professional complaints. Unfortunately, this attitude starts as early as law school. While some educators use courses such as Legal Ethics and Civil Procedure to highlight access to justice solutions such as unbundling, others skim over the access to justice crisis as a whole, or worse, tackle the subject of alternative billing (such as unbundling) by labeling it a “danger zone” or a “headache.”
The myth of the “risky” limited scope retainer is perpetuated by a great deal of ominously toned literature provided to lawyers about unbundling. These resources often use title words like “pitfalls,” “risk,” and “exposure.” Some even go so far as to use imagery of tightrope walkers, or a skull and crossbones. While it is critical to ensure that unbundling clients have a clear understanding of the services that are being provided to them, the framing of this as risk management rather than client service is a significant barrier to the development of good practices in unbundling.
Another barrier is law firms’ unwillingness to open themselves up to the possibility of providing unbundled services. While recent calls are more likely to suggest these alternative-billing methods, having (hopefully) been exposed to them in school, those further from the law school experience have only the above-mentioned resources as reference to what unbundling is. A quick Google search by a lawyer, trained to assess risk, is likely to focus on that concern: is this too risky?
The reality is that there is no data to suggest that lawyers who offer unbundled services are more likely to be sued, or to become the subject of a professional complaint. In fact, some research studies have concluded that lawyers providing unbundled services are actually sued less often than lawyers using full representation retainers (they also report higher rates of satisfaction). Lawyers who offer full-scope representation need to be just as careful in setting and clarifying client expectations as those offering unbundled services.
I often hear the phrase “the tide is turning” in reference to new lawyers entering practice with a fresh take on client service and billing. I believe that this places a disproportionate responsibility for this institutional change on the backs of young lawyers, ignoring the inherent power imbalance between new lawyers and their employers. Junior lawyers are very rarely involved directly in client billing, much less in firm billing reform.
As the gap between full representation and no representation widens, it is inevitable that the number of lawyers who offer unbundled services will continue to grow. To expedite this process, making it more accessible to both lawyers and clients, I propose a shift in conversation at all levels of the profession. I suggest that we take the resources, positions and education around unbundling from a conversation focused on (unproven) risk, and focus instead on how we as a legal community can best develop this new method of client service, providing clients with the best possible value for the funds that they have available.
If you are looking to provide unbundled legal services check out the NSRLP’s National Directory and Resource for Lawyers Considering Offering Unbundled Legal Services.
Lidia is a third-year law student at the University of Windsor, Faculty of Law. Since 2015 she has also been a Research Assistant for the National Self-Represented Litigants Project. Lidia is an access to justice advocate and in 2018 will be joining Willis Business Law as an articling student.