Unbundled legal services. Limited retainers. Discrete task representation. There are a variety of terms now used to describe the delivery of specified legal services to a client without the lawyer representing the client throughout an entire transaction or proceeding. Should BC lawyers unbundle their services? Would unbundling provide legal services to people who would otherwise “go it alone?” On recommendation of the Access to Justice Committee, the Benchers decided in December to strike a new task force to look at these issues more closely.
Would unbundling legal services benefit the public?
A new task force will begin work in 2005 to study the “unbundling” of legal services whereby lawyers offer clients a limited scope of legal assistance, rather than full representation throughout a proceeding or transaction.
The Benchers approved the task force study on recommendation of the 2004 Access to Justice Committee, chaired by Margaret Ostrowski, QC. The Committee sees a potential benefit for those members of the public who might be able to afford certain limited services and would not otherwise retain a lawyer.
From the Committee’s research to date, it is clear that the American Bar Association contemplates and supports lawyers offering limited scope representation. The ABA authorizes lawyers under Model Rule 1.2(c) to limit the scope of their representation “if the limitation is reasonable under the circumstances and the client gives informed consent.” The revised Model Rule permits and regulates the agreements by which lawyers can limit the scope of their representation. This, in turn, is intended to expand access to legal services by providing limited but valuable legal services to low or moderate income people.
In 2003 the ABA’s Section on Litigation published the Handbook on Limited Scope Legal Assistance, a comprehensive publication that features practice forms, rule revisions and ethics opinions. The forward to the Handbook states the following: “The Handbook is intended as a practical guide to providing legal services in a way that permits clients who otherwise could not afford or would not choose to hire a lawyer to obtain critical legal representation for discrete and important tasks in the course of resolving disputes.” The focus of the Handbook is litigation, in response to the growing pro se (self-representation) litigation phenomenon.
In Canada, of all law societies canvassed earlier this year, only BC and Alberta have rules specifically addressing limited scope services.
In BC, Chapter 10, Rule 10 of the Professional Conduct Handbook contemplates a limited retainer and it is anticipated that most, if not all, of the rules that apply to full legal representation also apply to limited scope services. Rule 10 provides:
10. A lawyer who acts for a client in a limited capacity only shall disclose promptly to the court and to any other interested person in the proceeding the limited retainer, in any case where failure to make disclosure would mislead the court or that other person.
Policy staff of the Law Society note that, while unbundling does not appear to violate any current rules, “it is likely that the rules were not drafted with the current broad concept of unbundling in mind.”
The new Law Society task force will zero in on whether, by deliberately choosing to offer limited scope services, lawyers would enhance access to legal services and should be supported, both within non-profit and pro bono programs and within law firms. The specific regulatory issues the task force will canvass include:
- the impact, if any, on liability and insurance;
- possible revisions to practice materials;
- relations with the courts at various levels;
- ethical issues, such as conflicts of interest;
- possible rule revisions.
Seeing the potential to improve access to legal services, the authors of the ABA Handbook note that, while the cost of full-service representation in litigation in the United States is often prohibitive, many pro se litigants have enough disposable income to pay for limited representation. “The market failure … is that the great majority of lawyers do not offer these potential clients the services they need and can afford,” they observe. “Instead [lawyers] present them with an all (full-service) or nothing (wholly self-represented) Hobson’s choice. The result is more pro se litigants.”
In the view of the ABA Litigation Section, some legal assistance is better than none, in most cases.
On a continuum of legal services delivery, the most limited types of legal services include those offered through self-help centres, legal advice hotlines and one-time interviews and advice.
A critical, if sometimes difficult distinction, is what constitutes “legal information” and what constitutes “legal advice” or “legal assistance.” The distinction is important because, if lawyers provide legal advice and assistance, they cannot avoid the accompanying duties and consequences of the solicitor-client relationship. That is to say, they owe the same duties of loyalty, confidentiality, diligence and competence to limited service clients as other clients.
Limited legal scope assistance identified in the ABA Handbook comes in many forms — coaching in mediation, collaborative lawyering and preparing or reviewing documents and pleadings. It may also include coaching throughout a litigation; representing a client in litigation within certain parameters (for instance, handling only uncontested divorces); and providing legal counselling and assistance, but not otherwise representing the client. Or a lawyer may offer representation in an initial case or proceeding that helps the client in a subsequent case or proceeding in which he or she appears pro se.
Hybrid situations also arise, such as a lawyer handling a critical step in a case or resolving a key point after which the client appears alone. There are also “lawyer of the day” (duty counsel) programs and group representation in which lawyers provide limited legal assistance to community organizations and non-profits.
Lawyers must address a number of considerations in setting up a limited scope retainer and obtaining informed consent — possible conflicts, the exact terms of the retainer, alerting clients to issues that fall outside the scope of the retainer, identification of the risks of the retainer, communications ground rules with opposing counsel and how the retainer will end.
The new Law Society task force studying these issues is expected to be appointed early in 2005. For more information on the task force and its work, please contact Charlotte Ensminger, Staff Lawyer, Policy and Legal Services at firstname.lastname@example.org, or any member of the 2005 Access to Justice Committee:
Margaret Ostrowski, QC (Chair): email@example.com
William Jackson (Vice-Chair): firstname.lastname@example.org
Patrick Nagle: email@example.com
Darrell O’Byrne, QC: firstname.lastname@example.org
Grant Taylor, QC: email@example.com
Gerald Lecovin, QC: firstname.lastname@example.org
Ian Caldwell: email@example.com
David Mossop, QC: firstname.lastname@example.org
Perry Shawana: email@example.com