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I almost didn’t go to law school because I didn’t think I could help people as a lawyer.
Thirty years later, I’m proud to be a lawyer because I know that we
lawyers can … and do make a difference in our clients’ lives on a daily
But I also know that we, as a profession, can do so much more.
This book is my attempt to present a different form of delivering legal services. Some say that this model is a threat to lawyering as we know it. The truth is that I can never envision a day when lawyers will be required to unbundle. However, I can see incentives, training, and other encouragement from society to make it easier to the consuming public to get unbundled help and for lawyers to feel safe to offer discrete task service products as a supplement to their traditional full service practice.
Simply put, I am writing this book so that people can get the help from lawyers that they need and so that lawyers can recapture market share and professional satisfaction by giving that help.
My mentor and the Father of Preventive Law, Louis M. Brown said it best:
“I hate to see people in trouble when they needn’t have been.”
It cannot go unnoticed how much the legal profession itself has evolved since I was admitted to the Bar in 1972. Actually, I almost never got to practice due to the reaction of the California State Bar against my partners Len Jacoby and Steve Meyers when we opened the nation’s first private legal clinic in Van Nuys in September 1972.
Our clinic was hailed for its innovations of a $15.00 initial consultation
(an early harbinger of unbundling), low flat fees, integrated office systems,
weekend and evening hours, use of paralegals, location in local neighborhood,
and willingness to finance fees on Master Charge (Visa was not yet invented).
But while the public was delighted, the legal community was very unenthusiastic – a reaction driven by fear. As with unbundling, lawyers were afraid that clinics would cheapen professionalism and lead to inferior client service.
The first irony was that that by pursuing the disciplinary investigation
(instead of studying ways to replicate and improve our model), the organized
bar created a public issue that led to stories on TV and in the popular press throughout the country. The bar’s actions were probably the single reason why Jacoby and Meyers was at one point able to grow to 150 offices and 250 lawyers throughout the country.
The second irony is that the success of Jacoby and Meyers led to its ultimate demise. Lawyers in every jurisdiction, buoyed by the protections offered by the California Supreme Court and the U.S. Supreme Court (State of Arizona v Bates and O’Steen, Cite), opened clinics and small law offices following the model of Jacoby and Meyers. The pioneers were no longer novel but had a huge overhead from a multi-million dollar advertising budget. The public got the legal services it needed at a price it could afford---but from other lawyers who followed our lead.
Although I left Jacoby and Meyers in 1976, I remained imprinted with
the need for increased legal access. After a satisfying experience as a
law professor and Director of Clinical Education at Mercer Law School in
Macon, Georgia, I returned to Los Angles to accept an appointment with
the Federal Trade Commission to head up consumer protection as Assistant
Regional Director. While at the FTC, I had my first direct exposure to
the concept of unbundling. As a supervisor of our investigation of the
estate industry, I had the opportunity to learn about (and admire) maverick
real estate brokers who “unbundled” their services to home sellers. Rather
than charge the customary 6% commission for the full package service (appraisal,
listing, marketing, showing, negotiation, and closing), these cutting edge
brokers unbundled their services so that sellers could pay for the discrete
services that they needed. For example, sellers might be willing to put
their own signs and show the property, but needed access to the multiple
listing service (open to brokers only) to adequately market their properties.
These innovative brokers might charge 1% of the purchase price (compared
to the full 6%) or even a flat fee to list the property as the seller’s
agent. Another unbundling model offered home selling kits (signs, banners,
step by step guides to market and sell) sold for reasonable prices. These
alternatives to the traditional 6% fee structure meant thousands of dollars
of savings to individual home owners—hundreds of millions of dollars
of saved commissions throughout the country every year!
When I reentered private practice, I retained a commitment to develop a wider vision for unbundling. At the same time, I discovered that my passion for mediation had possessed my professional soul. Mediation satisfied every aspect of my core personality structure – and gave people the help, empowerment, and peacemaking that I felt they deserved. However, 20 years ago (and to some extent, still today), the largest obstacle to the growth of mediation was the mindset held by both citizens and lawyers that when legal trouble strikes, the full service lawyer’s office is the first stop. Our current legal system – with the full service lawyer as the core provider – is solidly based on the adversarial approach to resolving conflict. Law schools continue to educate new attorneys in this approach. Since lawyers are schooled and comfortable with the full service package calling for representation in the adversarial system, clients are often not told about mediation and lawyers control the process for their clients. Most clients were – and continue today – to be afraid to try mediation without their lawyers’ involvement and support. Clients still have a very difficult time getting needed advice and help from lawyers without paying a significant retainer and surrendering control to their professionals.
This conundrum led me to my work as both a mediator and a lawyer to develop a model for lawyers being involved in but not taking over the mediation process. Leading eventually to my first ABA book, The Complete Guide to Mediation (1997), I felt lawyers and the mediation process were symbiotic in two respects. First, since lawyers are the gateway to client decisions, if options to litigation -- including mediation -- were raised by the lawyer for the client as possible alternatives, the discussion between client and lawyer of the benefits of mediation would inevitable lead to increased use of this client-centered process (with lawyer support and encouragement). Second, if mediation participants could find lawyer help on a discrete task basis, they could overcome their fears of going it alone and still take advantage of controlling their own destiny at reduced overall cost. The combined payment for both the neutral mediator and for the fees of unbundled lawyer help were significantly lower than for traditional representation (Cite Kelly).
Where does the organized Bar stand on unbundling? You might be surprised to learn that the ABA has supported and promoted unbundling for a long time. In 1991, I was appointed to serve on the ABA Standing Committee of Delivery of Legal Services. The focus of the committee’s work was studying the impact of the pro se revolution. I learned first-hand how people were self-representing in staggering numbers. As with mediation, the single stumbling block to the self-representation movement was the lack of available legal assistance. Our committee’s 1993 report showcasing the innovations in Maricopa County (Phoenix, Arizona) found that while the doors of the courthouse were being opened, the pro se movement had serious problems for judges, lawyers, and consumers themselves (See Chapter 1). One of the most promising solutions to these problems was found to be increased availability of legal help for the self-represented.
All of these factors seemed to shout at me in unison: Consumerism demonstrated by legal clinics, empowerment from mediation, legal health from preventive law, and the unalterable path toward self-representation (with its problems) all seemed to point to unbundling as a promising direction for the legal profession to pursue. The 1996 Recommendations of the ABA Comprehensive Legal Needs Study found the same thing: the expansion of unbundled legal services was found to be its #1 initiative for increasing legal access.
I have been speaking publicly about unbundling since keynoting a national conference in Australia in September 1993 and publishing my first article on the subject in Fall 1994. The unbundling movement since then has been nothing short of staggering. Unbundling has been the subject of activity in most U.S. jurisdictions and in several countries abroad. While many lawyers and judges opposing this legal services model were initially the most vocal (reminiscent of similar initial reactions to legal clinics and mediation), the organized bar as a whole has been a partner with consumer groups and the judiciary to explore ways to make unbundling safe and profitable for lawyers and increasingly available to consumers in a variety of models.
It is my hope that this book contributes to this effort.
Forrest S. Mosten
Los Angeles, California
All Rights Reserved: 2000
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