UNBUNDLE YOUR LAW PRACTICE:

How To Deliver Legal Services a la Carte

For Improved Service And Profits

Forrest S. Mosten, Unbundling Legal Services (2000, ABA Section on Law Practice Management)

For Ordering Information: www.MostenMediation.com

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CHAPTER 6 – ETHICAL AND MALPRACTICE BARRIERS TO UNBUNDLING:

How To Deliver Discrete Task Services Without Being Sued Or Disciplined


 “Unbundling highlights the need to be heads-up about your own responsibility.  We want lawyers to do that anyway for risk management purposes.  I have no problem with the client saying, ‘I want you to do only these three things out of the eleven that need to be done.’ But I do think it remains the lawyer’s obligation to point out that there are eleven things to be done.  The client isn’t going to know that.”

Kaga Kunzke, Wisconsin Lawyers Mutual Insurance Company
Madison, Wisconsin
It seems that wherever I travel to talk about unbundling to lawyers, before I can get my first overhead focused on the screen, several hands go up throughout the room:
 


These are the voices of lawyers.  But lawyers are not the only ones who have trouble with unbundling.  Discomfort, questions, excuses, hesitation, they exist everywhere:  with the public, with judges, with the organized bar, with the legislature, and in the law schools.  There are real fears and concerns about unbundling – and they need to be addressed.  The fear of malpractice, the concern about protection, these are very legitimate.  Some of the fears and concerns are not grounded in reality – and these need to be allayed.  These fears and concerns represent barriers to the widespread acceptance of unbundling in the legal world today.  There are true benefits to unbundling – as there are true barriers.  Yet, for every barrier, there are solutions that can make it easier for unbundling to grow in use and acceptance.
 

BARRIER:  FEAR OF MALPRACTICE AND DISCIPLINARY TROUBLE


 Even the lawyers who support unbundling for all the reasons set forth in Chapter 2 are often afraid to try it.  They are afraid that clients will get hurt.  And they are afraid that unbundling lawyers will be the logical targets for unhappy clients.

 Many of these fears are well founded.  The cost of a malpractice claim, whether based on smoke or reality, haunt every practicing lawyer in the US today.

Malpractice – originally intended as a protection for consumers – has today become more of a weapon, often used indiscriminately against innocent lawyers – only occasionally weeding out the negligent attorney.  How many clients use the claim of malpractice merely as a tactic to avoid paying a legal bill that is truly earned?  Yet malpractice laws and disciplinary rules are, for the most part, products of the traditional adversarial full service delivery model.

Those lawyers who today offer unbundled services do so within the full service paradigm so you must be aware of the concerns facing you.
 

SOLUTION:  STATUTORY IMMUNITY FOR ACTS OUTSIDE THE AGREED SCOPE OF REPRESENTATION AND AFFIRMATIVE ENDORSEMENT OF UNBUNDLING BY BAR ASSOCIATIONS, COURTS AND LEGISLATURES.

 

 
 
 

BARRIER:  BRIEF CLIENT MEETINGS STILL INVOKE AN ATTORNEY-CLIENT RELATIONSHIP AND HURRIED OR INCOMPLETE ADVICE MAY GIVE RISE TO MALPRACTICE LIABILITY

SOLUTION:


This is absolutely true.  Whether you provide advice at a party or in your office for 30 minutes, you are liable for any professional negligence that you may commit – regardless of whether you are paid or not.
 

Model Rule 1.1 Requires lawyer to provide competent representation. There is no “pass” on this for unbundling.   McNeal asserts that the standard of care depends on whether there is an attorney client relationship with respect to the particular matter at hand.  [McNeal, Mary Helen, “Redefining Attorney-Client Roles: Unbundling and Moderate-Income Elderly Clients,” Wake Forest Law Review, (Summer 1997), at 18]

I believe that the relationship is a given, but I concede that it is often difficult to determine its scope.  Model Rule 1.2(c) helps out: “A lawyer shall abide by a client’s decisions concerning the objectives of the representation…and shall consult with the client as to the means by which they are to be pursued.  McNeal, citing Hazard and Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (1996) , says:
“ Lawyers and clients should be able to agree for larger or smaller sums of money, the lawyer will commit more or less time and energy, and assume more or less responsibility.  Given the lawyer’s superior knowledge about the issues, the lawyer should assume responsibility for specifying the limitations.” [McNeal at 315]

I agree that the lawyer has responsibility to be sure the client is fully informed with respect to the choices available, but the client must take
responsibility to specify the objectives of the relationship based on that information.

Rule 1.3 of the Model Rules of Professional Conduct requires the lawyer to “act with reasonable diligence and promptness in representing a client.”  The comments provide that  the lawyer must act with “commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  The big problem here is determining when the relationship ends.  McNeal recommends that the attorney must clarify the status of the relationship—if the scope is properly limited, to a “specific matter”, the unbundler does not have to do anything more once its ended.
 


GUIDELINES TO AVOID MALPRACTICE

1. Have thorough diagnostic interview to identify pertinent factual, legal and personal issues which influence the breadth of lawyering the client may need or desire (See Chapter 4)

2. Conduct factual investigation sufficient to identify relevant legal issues. At minimum, advise client of related tasks that client may want to consider performing or hiring lawyer to perform (See Chapter 4)

3. Determine that the client sufficiently understands the consequences of “going unbundled”:  the limited nature of lawyer’s role and specific limitations of unbundled services. Mc Neal says this may take multiple meetings that diminish economic benefit of unbundling

4. Lawyers must assure that clients seeking our services have “convenient, ready, and inexpensive access to the necessary information to proceed pro se.  See Chapter 4 for Unbundling Friendly Information that should be provided for the Client.

5. Determine client’s capacity to handle their own work (Have Client fill out form “Indicators that Unbundling is Appropriate – p. ____)

6. Advise client of limitations of discrete service and potential obstacles Hand Client “Pros and Cons of Unbundling” p. _____)
McNeal



 

SOLUTION:


 This is reality, and negligence for legal work performed will be actionable under any proposed reform.  And it should be.  Lawyers will remain liable for any negligence they commit, regardless of how brief the engagement.  It is also reality that most people do not sue, and satisfied clients sue less and are appreciative of a lawyer’s advice.  The 1999 Colorado Supreme Court Comments to RPR 1.2 permit lawyers to relay on facts as represented by the clients.
 
 

BARRIER:  LIMITATIONS ON LIABILITY ARE AN ILLUSION.  LAWYERS FACE MALPRACTICE IF THEY FAIL TO ADVISE OR ACT ON MATTERS THAT COME OUT OF THE SAME SET OF FACTS OR EVENT.

SOLUTION:

 

 
 
 

Limitations on the scope of representation are permitted in virtually every state (cite).  The issue is whether such limitations are agreed to by the client after full explanation of the consequences and the advice to consult independent counsel before signing such a limitation.
 

Most lawyers currently work without written agreements limiting scope.  The recent Massachusetts Ethical Opinion (1998) and Colorado Supreme Court Rule (1999) affirm limited scope agreements patterned after the Sample Limited Scope Client Attorney Agreement (p. ____) and should offer more protection to those lawyers who have clients execute that agreement before rendering unbundled services and amend the tasks undertaken as the scope of representation evolves.
 

BARRIER:  LAWYER MALPRACTICE INSURANCE CARRIERS MAY NOT COVER LAWYERS WHO UNBUNDLE DUE TO THE RISKS AND ETHICAL UNCERTAINTY

SOLUTION:

 

 
 
 

Commissioner Kimberly Prochnau of Seattle believes that since this is a new service, malpractice carriers might want to see your limited scope agreement.  It is her understanding that although insurance carriers may be unfamiliar with unbundling, they approve such agreements on a case by case basis.

The Oregon State Bar carrier has sent out a letter to its policy holders indicating that unbundling is the practice of law and that its policies cover for discrete task representation.  If you have any question about your own policy, make a full disclosure by letter.  There have been no reports of any carrier turning down coverage for unbundling work.

 In her book, The Client’s Guide to Limited Legal Services, M. Sue Talia indicates that the solution rests in the self-interests of the insurance companies:
“Attorneys who have been routinely offering limited legal services find the client satisfaction quotient jumps substantially.  They do not get sued because the clients are happy.

 “You would think that malpractice carriers would have learned from the mediation experience.  Years ago when mediation was new and untried, some carriers denied coverage or even raised rates because they thought liability would increase.  The reverse happened.  People were so happy with the results they obtained themselves with the assistance of their mediator that claims decreased.  What a surprise.  People are happier when they are treated as grown-ups and given the tools to craft their own solutions.  Now most malpractice rates for mediators are lower than for traditional family law attorneys.”
The irony of all this is that experience has demonstrated that as with mediation, there are fewer rather than more malpractice claims when lawyers unbundled services.”  As of December 1995, none of the malpractice insurers with whom Lawyers Weekly USA spoke had seen a claim related to unbundling. [Perkins, Leigh P., “Unbundling Your Services Makes Some Clients Happy,” Lawyers Weekly, (December 18, 1995]

BARRIER:  MODEL RULE __ 4.2.__ PREVENTS A LAWYER FROM COMMUNICATING DIRECTLY OR INDIRECTLY WITH A REPRESENTED PARTY AND STATE BAR ETHICAL OPINIONS (CALIFORNIA FORMAL OPINION 1993-131, 1993) PROHIBIT LAWYERS FROM SCRIPTING THEIR CLIENTS TO NEGOTIATE DIRECTLY WITH A REPRESENTED CLIENT.

SOLUTION:


This formal opinion is indeed a direct barrier to unbundling and could frighten lawyers from acting as negotiation coaches when the other side is represented.
 What truly is scripting?  Is it still scripting if a client meets with the opposing party at Burger King, and memorizes the unbundling lawyer’s written script, and remembers the points and presents them in her own words?

 It could also be argued that lawyers script their clients every day and bar associations have much more important things to do than enforce this line of ethical opinion, especially when the same bar associations are clear in their policies supporting increased legal access, including unbundling.

 Yet anti-unbundling ethical opinions on the books have a chilling effect.  Judges are continually urging parties to settle lawsuits themselves and legislators seem unanimously in favor of policies that favor resolution and settlement.  Given the benefit to the public of having lawyer coaches urging settlement from the sideline and providing information to unrepresented parties that could level the playing field, perhaps a consortium of the bench, organized bar, and judiciary could
unite for legislation or rules that would affirm or sanction such negotiation coaching – or at least clarify the definition of “scripting” so that unbundled coaches need not be in fear of doing what is recommended in this book!

 As an interim matter, lawyer negotiation coaches should urge their clients to provide authorization for the coach to contact the other lawyer to indicate the coach’s existence and to gain permission from the counsel of record for the unbundled lawyer to coach from the sidelines, including scripting the client for negotiation sessions with either the other party or the other lawyer.  This may protect the unbundler from committing an ethical violation but it treads on other areas sacred to unbundling.  The client might not want either the other party or opposing counsel to know about the coach and treasures both the privacy and negotiating advantage that non-disclosure brings.  Also, if the coach comes out of the closet, the opposing lawyer may refuse to deal directly with the self-representer or may instruct the represented party not to negotiate directly anymore.  Either result could cost the client money and/or better possibilities to resolve the matter quickly.

 It should be noted that the 1999 Colorado Supreme Court Comments to CPR 1.2 gives added protection to the counsel of record – permitting a lawyer to communicate directly with a party who has limited representation, so this might motivate a counsel of record to agree that the limited representing lawyer can coach negotiations form the sidelines.
 This proposal is not a perfect solution – it may be more palatable to unbundlers given the Colorado Supreme Court’s 1999 requirement that lawyer ghostwriters who prepare court documents must disclose their existence.
 

BARRIER:  GHOSTWRITTEN PLEADINGS AND OTHER COURT DOCUMENTS DRAFTED BY LAWYERS OR ASSISTING PRO SE LITIGANTS MUST DISCLOSE THE NAME OF THE LAWYER WHO PREPARED OR ASSISTED THE PRO SE LITIGANT (Colorado Rule of Civil Procedure 311b)

SOLUTION:


Within the unbundling community, there are two schools regarding this barrier.  Before spelling out the differences, both schools seem to agree that lawyer ghostwriters do not need to disclose their existence when they draft non court documents such as letters, deeds, corporate documents, insurance forms, or the like.
 In regard to ghostwriting court documents, one school of unbundlers supports the Colorado scheme for two reasons.  First, Rule 3.11b specifically endorses limited representation and indicates that preparation of documents does not constitute an entry of an appearance by the ghostwriter.  This gives ghostwriters some comfort (especially in Colorado) given the outrage toward a ghostwriting lawyer by Colorado Federal Judge John Kane in Johnson v. Freemont (cite) in which Judge

Kane ordered the ghostwriter to respond to contempt for “defrauding the court.”  The second reason supporting disclosure is that many unbundlers believe, as does the Colorado Supreme Court, that “although limited scope may be solely between lawyer and client in non-court matters, when court pleadings are filed, the matter now involves the court.” (Comments to Colorado Rules of Professional Conduct, 1.2, 1999.)

 The other unbundling school contends that courts benefit greatly from ghostwritten documents and that research shows that not only do judges not grant pro se litigants deference, but the truth is that unrepresented litigants do far worse with judges than parties with counsel (cite).  This school contends further that access to the courts has never depended on hiring a lawyer (except in rare instances such as Death Penalty cases, or appearances by a corporation) and that litigants have a right to get help from any source, lawyers or non-lawyers.  This view contends that such disclosures violate the litigant’s right to confidential and privileged communication with their attorney.

The issue of ghostwriter disclosure to the court may need clarification from the nation’s highest court or tolerate the existence of different standards in different states.  The safest route is to disclose and the

Colorado Rule mandates that the need for such disclosure to the court must be disclosed to the pro se party by the ghostwriter – giving the party the Faustian choice of choice of either doing without the help to prevent the disclosure or getting the help and having the lawyer disclose to the court. In Florida, this same disclosure requirement applies to non-lawyer document preparers as well (cite).
 

BARRIER:  A LAWYER MAY NOT MAKE A LIMITED COURT APPEARANCE WITHOUT PERMISSION OF THE COURT REGARDLESS OF THE TERMS OFA CLIENT–LAWYER AGREEMENT

SOLUTION:


The Colorado scheme has solved one aspect of this barrier in that lawyers are less likely to be dragged into a case for a full appearance if they comply with Rule 311. However, as indicated in her 1998 article, “Limited Services Representation in Unbundling Civil Legal Services, A Critical Reader, (ABA 1998), Seattle judicial officer Kimberly Prochnau

warned lawyers that they could be required to fully appear and represent clients at future hearings if they appear in court because courts do not generally recognize special appearances.

The Superior Court in Ventura California is exploring the legitimacy of special appearances for low-income litigants on a single substantive issue.  This leaves open the issue of special appearances for single procedural issues (i.e. Hearing on Summary Judgment, pre-trial motions, etch.  The issue also remains why an income standard would be the only legitimate basis for limited court appearances.

This issue of Special Appearances advances the discussion beyond the original concerns of unbundling.  Granting lawyers special appearances permits people to expand the use of lawyers in a discrete task way and furthers their access to the legal system.  Unbundling, in its original concept and as presented in this book, is solely directed at helping the unrepresented population.  Having lawyers jump in and out of lawsuits without court permission, even when filling a needed gap in representation, has never been within the agenda of unbundling.  However, if more states follow the Ventura model without income restrictions, unbundling may become commonplace both vertically (lawyers and clients sharing non-court tasks) as well as horizontally in which full representation may be permitted in sanctioned limited appearances.
 

BARRIER: LAWYER COACHES MAY NOT IMPEDE THE ADMINISTRATION OF THE COURT SYSTEM


Coaches are not permitted to gesture or pass advice to a pro se self-representer and may not be permitted to consult with the pro se litigant  in the courthouse during breaks in judicial proceedings.
 

SOLUTION:


With some exceptions, judges have been some of the most ardent supporters of unbundling. They know how much better prepared pro se litigates are with limited lawyer assistance. Such unbundled help speeds up proceedings and protects the rights of pro se litigants without requiring judicial officers to help them out.
In its inception, unbundling never envisioned that lawyer coaches would actually come to court—mainly due to the unaffordability of that role.  If clients want to pay for that limited help (which is certainly less

expensive than full service court advocacy), the bright line is that the coach should never interfere with court proceedings.  Like other citizens, lawyers should be permitted in the courthouse, even in the courtroom, but should not be able to coach during the pendency of the proceeding.  Nothing should prohibit coaching during breaks—but a pro se party’s desire to consult with a lawyer coach should not be a basis for a recess. Of course, when a lawyer is personally appearing, this status should be disclosed to the court and to the other party at the first opportunity.
 

PRACTICE TIPS


1. Have your client sign the Limited Scope Client Attorney Agreement before you render any legal services beyond the initial conference;
2. You should be crystal clear about what the client needs to do so that you are not blamed later for dropping the ball;
3. If you are serving as a negotiation coach and the opposing party is represented, try to get permission from your client to contact the other lawyer to announce that you are coaching from the sidelines;
4. Make sure you know your jurisdiction’s rule on disclosing the existence of an attorney ghostwriter for court pleadings. If in doubt, disclose.
5. Limited court appearances are often not permitted. Do not make a court appearance for an unbundled client unless you are sure that the judge honors such limited appearances;
6. If you actually go down to court to coach a limited services client, do not interfere with the court proceedings in any way—confine your conferences to the recesses—hopefully far away from the courtroom;
7. Check with your local bar association about possible incentives for you to establish a client library;
8. To avoid claims of fee churning or lawyer self-interest, offer your client the choice between full service and limited scope representation—and be sure to explain the differences.
9. Encourage your bar association to put on an unbundling training program for lawyers in your community;
Work with your state legislature in promoting legislation that will protect lawyers who wish to unbundle
 

SUMMARY OF SIGNIFICANT OPINIONS


Alabama Ethics Opinion RO-91-39: An attorney may represent herself pro se.

Alaska Bar Association Ethics Opinion No. 93-1: A lawyer may limit the scope of her representation to preparation of legal pleadings, but must clearly notify client of risks of limitation.

American Bar Association Informal Ethics Opinion 1414: A lawyer may advise, prepare or assist in preparing pleadings for pro se litigant depending on the extent of the lawyer’s involvement.  Extensive undisclosed participation by a lawyer would constitute misrepresentation.

Arizona Opinion 91-03: A lawyer may represent on a limited basis with the client’s consent, so long as representation is not so limited in scope as to violate the Rules of Professional Conduct and so long as the lawyer does not advise the client to do things that the lawyer would be prohibited from doing personally.

Colorado Bar Association Ethics Committee Formal Opinion No. 101: A lawyer may limit representation provided she makes a sufficient inquiry into and analysis of the factual and legal elements of the problem to provide competent representation.

Committee on Professional Ethics Informal Opinion 90-18: A Pro Se Divorce Class is acceptable to offer clients, so long as the client is fully and competently advised of the perils accompanying the pro se procedure.

Formal Opinion No. 1987-2: A lawyer cannot draft pleadings and other documents unless the client commits himself beforehand to disclose such assistance to both the court and the opposing party.

Iowa Board Opinion 94-35: It is improper for an Iowa lawyer to prepare pleadings for use in pro se proceedings in any state court in which the lawyer is not licensed to practice.

Los Angeles County Bar Association Professional Responsibility and Ethics Committee: A lawyer may limit representation, but in order to specially appear on behalf of the client before the court for a limited purpose, the lawyer should comply with all applicable court rules and procedures.

Massachusetts Bar Association Committee on Professional Ethics Opinion 82-8: A client using a lawyer should not communicate with the opposing party in negotiation without the consent of the opposing party’s counsel.

Massachusetts Bar Association Committee on Professional Ethics 1997-T67: Ghostwriting may be improper, and even with a disclaimer liability must extend to all services actually rendered by lawyer.

New York Opinion 613: A lawyer may prepare pleadings for a pro se litigant without entering an appearance as attorney of record.

Professional Ethics Commission of the Board of Overseers of the Bar Opinion No. 89: A lawyer may limit representation of a client and prepare complaints without signing the complaint or otherwise entering an appearance in court.

State Bar of California Standing Committee on Professional Responsibility and Conduct Interim Opinion No. 95-0015: Dispensing legal advice over the telephone can subject the lawyer to unintended client relationships as well as unanticipated ethical duties.

State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1996-145: If a lawyer does not have reason to know whether a party is represented, she is not required to inquire if the party is represented.  However, it may be prudent to inquire when it is not clear whether the party is represented.

State Bar of New Mexico Advisory Opinions Committee Advisory Opinion 1987-6: Whether or not lawyers participating in a pro se clinic establish a lawyer-client relationship is a matter of law rather than a question of professional responsibility, so the Committee refuses to offer an opinion.  However, there is no ethical objection to a proposed pro se clinic.

All Rights Reserved: 2000

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