Forrest Mosten www.MostenMediation.com
and Lee Borden www.divorceinfo.com.
As presented at the Academy of Family Mediators 2000.
Unbundling (also called discrete tasks representation) offers clients a middle ground between dispensing with lawyers altogether or signing on for the full service package. The client is in charge of determining which services are to be performed by the client, which services are to be performed by the lawyer, and the extent or depth to which the lawyer will perform the services.
The client could contract separately
to perform other tasks or perform them without using a lawyer. One of the
cardinal principles of unbundling is "Use your lawyer only for what only
your lawyer can do."
Let's be honest. Perhaps the biggest selling point for unbundling is that it costs less. When the parties do most of the work themselves and hire an attorney only for what they need, they save money. But that's not the only benefit from unbundling. It also allows them to stay in control. They decide what issues to negotiate. They decide when to discuss what.
Because unbundling almost inevitably results in more contact between spouses in a divorce, it also sets a pattern for both of them built around sitting down and working out the issues between them, rather than relying on someone else to do it for them. They’ll need to do it soon enough, so they might as well get started now.
Some bar associations and some courts have tried to restrict the offering of unbundled legal services. This effort continues, but it’s losing steam. In general, more courts and bar associations are beginning to recognize that unbundling is here to stay.
The primary criticisms of unbundling fall into three broad classifications – concern that courts and judges might be misled, concern that clients might be misled, and concern that clients might make mistakes.
Judges often state that they give the benefit of the doubt to pleadings and other submissions from parties who are pro se (proceeding without the help of a lawyer), knowing as they do that these documents have been prepared by a lay person. According to this argument, to allow a pro se litigant to file a document prepared by an attorney without disclosing the attorney’s role to the court might give that litigant an unfair advantage.
There are two responses to this concern. First, one may question whether it really happens very often. In many courts, pro se litigants actually get less help, less encouragement, and less patience than attorneys. A court official might be willing to guide an attorney patiently through the process of correcting pleadings so they will be accepted but will simply dismiss a pro se party with a curt "It’s not right; you need to hire a lawyer."
Second, to the extent that the court
might be misled, it is neither burdensome nor unjust to require that pleadings
prepared by counsel say as much on their face. It would be a simple matter
for a court to require that any pleading prepared by a lawyer and submitted
pro se bear a legend "Prepared by counsel."
The second oft-expressed concern about unbundling is that clients will think they are getting full-service legal representation when they are actually contracting for something less. A litigant who has visited with a lawyer acting as a coach will believe that the coach is doing everything a lawyer needs to do may not monitor deadlines, or may not show up for a hearing.
This concern is often expressed by bar associations and courts but seldom if ever by the parties who have used the services. The authors between them have provided unbundled services to thousands of litigants without one incident where a client thought the role was anything greater than the service contracted for.
The solution to this concern, clearly,
is clarity. Clarity in the engagement letter for the provision of services,
and clarity in the communication between the attorney and the client. The
attorney needs to check from time to time to ensure that the client’s strategy
is sound, and this should always include the client’s monitoring of deadlines.
It also should include the client’s understanding of when it would be appropriate
to ask for more help.
This is real. Persons who choose unbundled legal services take on more freedom and responsibility than persons who have traditional legal representation. The hard truth is that along with that freedom and responsibility comes the power to muck up their case. Two responses are appropriate. First, a good coach who sets out clearly with the client when it’s appropriate to ask for more help can minimize the mistakes the client is likely to make.
Second, the objection assumes that
the choice is between unbundled legal services and full representation.
This is generally not the case. People who use unbundled legal services
often do so because it’s the only way they can get access to the legal
system. If they didn’t use unbundled services, they would have no legal
services at all. Yes, from time to time, a client will make a mistake in
negotiating with his or her spouse or their lawyer. Gaining access to unbundled
legal services doesn’t increase that risk, however. To the contrary, it
The models of unbundling can take countless forms, but the ones used most often appear below.
When a lawyer acts as a "coach," he or she is available to give straight answers to the client for the questions the client has. The fundamental idea of coaching is that most people don't need somebody to do their negotiating for them.
A good coach can do that, offering a leg up without charging an arm and a leg. With most coaches, the parties pay for the time you actually use -- no more, no less. They pay on the spot, meaning they don't sign a retainer agreement. When they finish with the coach, they don't owe the coach any money, and the coach doesn't owe them anything.
The next time they come back to see the coach, they’ll pay again. Simple. Clean. They pay for what they need. And they stay in control. If they need their coach to go to court on their behalf later, they can always work that out with a separate agreement.
A coach can act as a negotiation tutor,
helping a party realize how negotiations work and how to prepare for negotiations.
A negotiation tutor can even guide the person through a series of role-plays,
so they have an idea in advance of what to expect and how they might respond.
Often a party whose spouse has filed for a divorce simply needs to file an Answer, the legal document that avoids default. Then the party will be able to negotiate with his or spouse or the spouse’s lawyer to resolve the issues of the case. Occasionally, the party may need more complex documents filed, such as Interrogatories, Requests for the Production of Documents, Requests for Admissions, and Motions. In each case, the party may desire to maintain control of their case but need the assistance of a lawyer to file the document properly.
An attorney who offers unbundled legal
services can assist with drafting these documents and the party can file
them. This way, the document will meet the court’s standards, the party
will protect his or her rights, and the party will continue to be free
to negotiate without having to speak or work through a lawyer.
Often what a party needs when he or she is going through divorce is straightforward information. Attorneys who provide unbundled legal services often make available to their clients complex compendia of information, either by audiotext (telephone) or on the Internet, so the client can access that information 24/7. Remember the cardinal principle, "Use your lawyer only for what only your lawyer can do." If a person going through divorce can spend three hours on a web site before visiting with a lawyer, that person may have 80% of their questions answered. This will reduce dramatically the time they spend with the lawyer and reduce dramatically the money they pay to the lawyer.
If you are clear and concise in the availability of unbundled services, your client will have a clear understanding of the potential roles they can serve and the roles you may serve. Using a carefully drafted engagement agreement, the client can select among 17 classes of service the lawyer can perform. These services include:
The client has the responsibility to perform those services that are not checked off. The lawyer is not authorized to perform those functions and not entitled to payment for them. If the client makes ineffective or self-destructive decisions or actions in handling a task for which the lawyer is not responsible, the client cannot blame or take legal action against the lawyer.
Mosten, Forrest S., The Complete Guide to Mediation, American Bar Association, 1997.
Talia, Sue, A Client’s Guide to Limited Legal Services, Nexus Publication, 1998.
Sample Coaching Agreement online: http://www.divorceinfo.com/coachingagmt.htm
Online description of how coaching works: http://www.divorceinfo.com/coaching.htm
Online description of the benefits and risks of unbundling: http://www.divorceinfo.com/unbundling.htm
All Rights Reserved: 2000
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