Unbundling legal services: alternatives to full service representation
Representatives of the Law Society’s Unbundling Legal Services Task Force met recently with members of the Cariboo Bar to share information and views regarding the provision of discrete or “unbundled” legal services under limited retainers.
Task Force Chair Carol Hickman told the Benchers that the September 22nd consultation in 108 Mile House was “an important component of our work toward generating a final report on the topic of unbundled legal services.”
Ms. Hickman also said that any recommendations from the Task Force would be suggestive, not prescriptive. “We are very aware that considerable ‘unbundled’ legal work is already being done in BC, and done well. While it’s important to examine how a more formalized approach to unbundling might contribute to greater access to justice in this province, it is also important not to disrupt what’s already working well.”
Ms. Hickman advised the Benchers that the Task Force representatives found their meeting with members of the Cariboo Bar both informative and enjoyable. “The session was well attended and a great success,” she said. “The tone was informal and open, with many practical questions and issues raised in the discussion.”
Those issues ranged from the strength of client demand for discrete services such as ghostwriting documents and pleadings, and making limited appearances before the courts, to the challenges of managing actual and potential conflicts of interest, and to the complexities of communications between parties where one or more is partially represented by a lawyer. “Perhaps as important as the information exchanged was the quality of the dialogue itself,” Ms. Hickman said. “The local bar really appreciated the fact that our Task Force members visited their community and came prepared to listen to their concerns.”
The Benchers established the Task Force in 2004 on the recommendation of the Access to Justice Committee. In early 2005, the Task Force began to examine the issues raised when lawyers offer their clients the option of discrete or limited scope legal assistance, instead of full legal representation on all aspects of a transaction, dispute or process. The major public interest implication of unbundling or limiting the scope of legal services lies in the potential to increase access to justice for members of the public who otherwise might not be willing or able to obtain legal representation.
Consultation has been an ongoing element of the Task Force’s work. In May 2005, a facilitated consultation was held in Vancouver, including lawyers, judges, government and community organizations. That session sought to determine which services BC lawyers currently unbundle, how and to whom those discrete services are offered, and which unbundled services are seen by community leaders as being most helpful to the public. Participants were also asked to identify risks, issues or challenges associated with unbundling, to consider whether there should be a broader unbundling of legal services and, if so, to suggest how that broader unbundling might look.
The Task Force is exploring how unbundled legal services can enhance access to justice, and is reviewing possible regulatory and procedural changes to facilitate unbundling. Specific regulatory issues being canvassed include:
- liability and insurance implications;
- possible revisions to practice materials and rules;
- relations with the courts; and
- ethical issues, such as conflict of interest, informed consent and duty of disclosure.
While the American Bar Association’s Model Rules for limiting the scope of legal representation have been in place for several years, a 2004 survey of Canada’s law societies revealed that only BC and Alberta had rules specifically addressing limited scope services. Chapter 10, Rule 10 of the Professional Conduct Handbook requires any lawyer who acts for a client only in a limited capacity to disclose the limited retainer promptly, both to the court and to any interested party in the proceeding, if the court or such party would otherwise be misled.
The Task Force anticipates that most, if not all, rules that apply to full legal representation also apply to limited scope services. Lawyers must address a number of considerations in setting up a limited scope retainer and obtaining informed consent, such as identifying potential conflicts and risks, settling the terms of the retainer, alerting clients to issues that fall outside the scope of the retainer, establishing ground rules for communications with opposing counsel and defining how the retainer will end.
Potential difficulty lies in the distinction between “legal information” on the one hand, and “legal advice” or “legal assistance” on the other. The distinction is important because, if lawyers provide legal advice and assistance, they cannot avoid the ensuing duties 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 to other clients.
The Unbundling Legal Services Task Force is now finalizing the results of its research and consultation work. Input will be sought from the Ethics Committee before the Task Force’s final report is released in the new year.