Access to Justice

Access to Justice--Unbundling: Filling the Gap


by Bradley A. Vauter

Michigan attorneys in private practice, as well as those providing legal services to the poor, may already be among those in the country who have been providing "unbundled services" to clients for years without having given such services a specific name. In the right context, unbundling of legal services could have significant benefits for consumers—some of whom feel legal representation is beyond their means. While bridging the gap between what’s available for the well-heeled and some of the poorest, unbundling could benefit attorneys and courts too.

Unbundling is the provision of discrete legal services or individual legal tasks by an attorney, on behalf of and at the request of a client. This, at least, was the working definition of the State Bar of Michigan Access to Justice Service Delivery workgroup that studied the issue. This model differs from legal representation or assistance during which an attorney is normally obliged to handle all matters presented in the course of litigation or ongoing client representation.

In the course of providing legal help to individuals, especially the nearly 50 percent already struggling to help themselves in our courts without attorneys (referred to as pro se, pro per, or self-help clients), lawyers might find that unbundling can take many forms. It traverses a spectrum of services, including telephone or in-person advice, client coaching, assisting clients in negotiations and litigation, document review, pleading preparation or assistance, and even assistance with discovery or limited court appearances.1

An Access to Justice for All Task Force workgroup looked at this issue and recently suggested that client consultations (involving education and or analysis), drafting assistance, and limited court appearances would be the most likely ways clients might best make use of limited attorney assistance. While they were very supportive of the unbundling concept, the group cautioned that to work well, courts, counsel, and clients should know "up front" that the attorney involvement in the individual matter is limited. Further, an unbundled approach should be used only when the attorney reasonably believes that the client can adequately represent himself or herself in the balance of the matter. Thus, unbundling would only be one tool helping to increase access to justice for the residents of Michigan, not a complete panacea.

It is no secret that segments of the low- and moderate-income population need legal assistance, yet are unable to find affordable legal services. A 1994 American Bar Association (ABA) study found that 47 percent of low- and moderate-income households experience at least one civil legal problem per year2 and that on average, they face 2.3 problems that would lend themselves to a legal resolution.

Among the most prevalent needs mentioned by low- and moderate-income individuals surveyed by the ABA were those involving housing and property rights, personal finance and consumer law, community and regional needs, and family and domestic issues. Less prevalent but still significant were needs in areas such as employment, personal injury and economic injury, health care, and wills and estates.

Those surveyed also named difficulties with public benefits, small farm and small business needs, children schooling issues, and civil liberties, but these problems were mentioned less often. Yet, even with legal service programs in place many of these legal needs go unmet, and many surveyed would not qualify for help via legal aid, since it is typically restricted to the very poorest.

More recently, "Who Needs Lawyers?" in the June 12, 2000 issue of Time noted that there are booming numbers of self-help filings in courts across the land, which too often result in frustration, havoc, and delay. While responses to the phenomenon around the country vary, most efforts are now focused on opening the courthouse by offering more information, guidance, and forms; simplifying court procedures and forms; and encouraging lawyers to offer limited advice for lower fees (unbundling).

Would unbundling services really help some of these middle-class self-help litigants who feel, perhaps wrongly, priced out of full legal representation? Would it help litigants with such modest incomes (125 percent of the poverty level or below) that a legal service program might normally assist them with full representation if program resources were sufficient? The answer for many is yes. Unbundling can help. Not in every case, but in many. No matter how determined or educated they may be, self-help litigants do not usually understand all the workings of the court, and some lack the communication skills required to present an organized and appropriate recitation of facts to the court. The counsel of an attorney is often the boost needed.

A decision to offer unbundled services should be made on a case-by-case basis. The report by the unbundling workgroup notes some limitations that would preclude wise use of unbundling. Primarily, it suggests that attorneys consider the complexity of the matter and the ability of the parties to help themselves, with limited assistance, before agreeing to provide unbundled services.

With the right guidance, many self-help litigants can succeed. Attorneys who fill this niche will be doing the clients, the courts, and the profession a service. An example of such success can be found in Phoenix, Arizona. According to Bob James,3 administrator of the Maricopa Self-Service Center, unbundled legal services—coupled with free and easily accessible information explaining court procedures—greatly enhanced self-help litigants’ ability to maneuver through the system and also reduced the burden on court employees by approximately 25 percent.

In Arizona, James said, attorneys may list themselves as available to provide unbundled legal services via lawyer referral services. Clients who may have been fearful of attorneys or afraid that they could not afford a retainer for a divorce (in the nature of $1,200 to $2,000) were often interested in meeting with an attorney for a few hours, as needed, and thus getting a basic education and assistance as the divorce unfolded. For the most part these litigants continued to work their way through the system themselves. Once in operation, court personnel reported they were less often "buttonholed" by confused self-help litigants, and self-help litigants often reduced the total number of hearings, trips, and/or appearances they made to the courthouse to conclude their matter.

In Michigan, it appears attorneys could embrace the concept of unbundling with a clear conscience. After reviewing a myriad of written materials, including ABA and various state bars’ ethics rules and opinions, state and federal case law, law review commentary, legal news articles, project reports, conference materials, and website materials,4 the unbundling workgroup addressed the legal and ethical questions that would likely arise with unbundling of legal services.

In fact, current practice permits limited representation and assistance by attorneys, as long as clients agree to such an engagement. Practical concerns about the effects of Michigan’s Court Rules, however, led the group to propose modification of two such rules, MCR 2.114 and 2.117, to clarify an attorney’s ability to ethically provide unbundled services and to provide for withdrawal after those services are completed. The changes should help assure the success and greater acceptance of the unbundling concept.

These changes are worth making. Clients, especially those in the gap, benefit by enhanced access to the legal system. Unbundling would improve the client’s ability to obtain advice, help draft legal documents, provide limited representation, or otherwise obtain other legal services from an attorney in a more affordable fashion. Self-help litigants would more likely complete their matter successfully with limited help rather than none at all. Benefits also accrue to the legal system as a whole, since greater preparation and precision by self-help litigants results directly in a reduction of errors in documents and procedures, reduced demands on court personnel, and crowded dockets.

Change in the Michigan Court Rules would also help address possible barriers the work group identified, such as:

•The ethics of assisting self-help litigants with pleadings and legal filings, specifically if an attorney "ghost writes" a pleading without disclosure

•Resistance because self-help litigants might gain an unfair advantage if they receive both behind-the-scenes attorney assistance and greater judicial latitude because of an apparent unrepresented status

•Resistance if unbundling is perceived as diminishing services for existing clients, rather than a way to reach new clients who cannot or choose not to hire an attorney for full representation, but who may hire one for discrete or "unbundled" services

•Attorney apprehension that behind-the-scenes preparation of self-help pleadings would be considered an appearance, thus requiring full-service representation

•That limited representation may force full representation (for example, that the court might expect the behind-the-scenes, limited representation lawyer to engage in full-service representation, despite a retainer agreement that expressly limits representation)

•Quality control issues

Attorneys thinking about or already providing unbundled services understand that MRPC 1.2(b) specifically provides that "a lawyer may limit the objectives of the representation if the client consents after consultation." This rule is premised on the fact that attorney-client relationships are ordinarily based on contract, and that parties may thus mutually agree to limit the scope of representation. Naturally such a general rule plays out differently depending on circumstances.

Consequently in the "advice and counsel" arena, attorneys are probably most comfortable giving assistance as long as the lawyer remembers that even a client she or he meets just once is still a "client," requiring adherence to conflicts, confidentiality, and competence rules of professional conduct.

Providing limited advice and counsel is not new to the practice of law. In the transactional areas of commercial and corporate law, for example, it is not uncommon for a corporate client to hire counsel exclusively to review a contract. In such cases, there is seldom any expectation that the lawyer will handle any further aspect of the matter, or other corporate matters, and further representation would require a new agreement. Similarly, many criminal appellate and civil law attorneys offer initial case consultations and assessments for a flat fee. Should the client wish to proceed with that attorney, the terms of further representation are negotiated and a new retainer agreement executed.

Limited court appearances by attorneys can, admittedly, be trickier. While ethical under MRPC 1.2(b), practical prohibitions may come into play after entry of an appearance. In Michigan, this prohibition is found in MCR 2.117(C)(2), which provides that "an attorney who has entered an appearance may withdraw from the action or be substituted for only on order of the court." Not every court allows counsel to withdraw, as many attorneys will tell you. Thus MCR 2.117(C)(2) should also be modified to avoid actual or perceived prohibitions.

If attorneys and clients are encouraged to use an unbundled approach, when possible, even if only to "bridge the gap," then pleading and document preparation will be involved. Few eyebrows are raised when attorneys prepare documents such as deeds and wills for clients even though the client contact may be relatively brief. But attorneys may find that preparing pleadings or documents for clients involved in self-help litigation seems more complicated.

Indeed, drafting items for nonattorneys who are litigating a matter in court has created a much wider range of opinions. Three primary views have evolved regarding pleading and document preparation in such instances according to the unbundling work group: 1) that drafting assistance, whether reported or undisclosed, is currently ethical and acceptable; 2) that drafting assistance is unethical and/or unacceptable in practice; and 3) that drafting assistance is acceptable when disclosure is made that a document or form was "prepared by counsel or prepared by ________ (attorney’s name), or where the assistance is limited to assisting a client who needs to complete a pre-existing form (such as an SCAO approved form for a PPO or guardianship procedure or the like).

For detailed discussion and analysis of these positions, readers should refer to the report of the workgroup on unbundling, cited earlier. As long as proper disclosure is made and the court is aware that the self-help litigant before them availed themselves of drafting assistance and/or coaching, most courts and ethics opinions give unbundling a pass.

Another suggested court rule change could protect attorneys from the dangers of "signature certification" for documents drafted in a self-help case,5 as well as from court ordered representation in a case, where their representation was limited to drafting assistance. Modification of this rule would help specifically ensure that unbundled legal services would be made more available to all Michigan clients with a legal problem.

The specific modifications recommended by the group follow:

First, MCR 2.114(C) should be modified by adding a new subsection, (C)(3), which would read as follows:

If a pleading, including a form, has been prepared by an attorney, law firm, or legal services agency which has not appeared formally in the case, the pleading shall indicate the name of the attorney, law firm, or legal services agency that prepared the pleading or form. Such full disclosure does not constitute an appearance by the attorney in the proceedings.

Second MCR 2.117 should be modified by adding a new subsection, (D), which would read as follows:

An attorney may, upon written agreement with the attorney’s client, enter an appearance limited in objectives and means. The attorney who has filed a limited appearance may withdraw from the action when the client’s limited objectives, as set forth in the appearance, have been reached.

This recommendation would not permit an attorney to "withdraw at will" from a court case. Rather, it would require that the attorney 1) execute a retainer agreement limiting the scope of representation by establishing specific objectives and the means to be employed in achieving those objectives, and 2) withdraw only after achieving the named objectives.

These few court rule changes would help pave the way to greater use of unbundled services, and this, in turn, is likely to benefit the public, the profession, and the courts. If we wanted to do even more to facilitate unbundled services, the workgroup suggests we would also be wise to help Michigan attorneys and the general public by:

•Providing free ethical training to attorneys who wish to provide unbundled legal services

•Providing model retainer agreements to attorneys who wish to provide unbundled legal services

•Promoting in the general and legal media ways unbundling may be useful

•Working with the State Bar of Michigan Lawyer Referral Services’ Prepaid Committee and all LRIS’s to establish "unbundled panels" or the listing of unbundling as a practice area

Embracing such changes could help attorneys be more responsive to those who have not been knocking on our doors or who have knocked before only to be turned away. As more individuals file in person or struggle to learn everything they need from kits and the internet, lawyers should be able to help fill the gap for some of these individuals in a manner both economical and ethical.

Footnotes

1. Forrest Mosten, the California attorney who may have coined the phrase "unbundled legal services," illustrates this range in an a la carte menu of 17 services available to his clients. See Dianne Molvig, "Unbundling Legal Services," Wisconsin Lawyer, September 1997.

2. Reese, Roy W., Eldred & Carolyn A., "Legal Needs of the Low-Income and Moderate-Income households: Summary of Findings from the comprehensive Legal Needs study," ABA Consortium for Legal Services and the Public, 1994. These three studies are available individually or collected as one publication from the ABA.

3. Telephone Interview with Bob James, Maricopa County, Arizona, by Brad Vauter for the SDS unbundling workgroup, in October, 1999.

4. To read the workgroup report, use the following link http://www.michbar.org/access/sds/content.html then scroll down and select Unbundling. Reference to case law and ethical opinions from around the country will be found in the report. You may call Brad Vauter at (517) 346-6358 for further assistance.

5. MCR 2.114(D) provides that "the signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that

   (1) he or she has read the document;

   (2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and

   (3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Changing the Face of Legal Practice

By Kari Deming

The practice of law is an ever-evolving art. In recent years, widespread Internet access, increasingly savvy legal consumers, and the vast unmet legal needs of low and middle-income people have accelerated the natural transformation of legal practices. In October 2000, legal professionals from 27 states and Canada met in Baltimore, MD, to assess trends and innovations in the delivery of legal services at "The Changing Face of Legal Practice: A National Conference on ‘Unbundled’ Legal Services."

ABA president-elect Robert Hirshon kicked off the conference, stating "I embrace and support unbundled legal services." Hirshon supported this endorsement by discussing how unbundling increases access to justice and decreases docket clogging in the courts. He went on to admonish, however, that the legal community must use unbundling responsibly, "pursu[ing] the benefits, recogniz[ing] the limitations...and strik[ing] the balance" between delivery of unbundled and full legal services.

Energized by the opening plenary, conference participants, including Maine Supreme Court Justice Howard Dana, Maryland Court of Appeals Chief Judge Robert Bell, California attorney Forrest Mosten, and over 200 other judges, attorneys, service providers, and academics, spent three days exploring the ethics and practicalities of unbundled legal services.

Perhaps the most exciting aspect of the conference, however, was the sharing of innovations in the provision of unbundled legal services. These cutting-edge projects, developed and implemented in courthouses, nonprofit organizations, private practice, and industry nationwide, include:

Maryland Legal Assistance Network—A statewide collaborative project to improve the delivery of legal services to low- and moderate-income people in Maryland, including an Internet-based People’s Law Library, Public Interest Law Resource CenterPro Se/Unbundled Legal Services Project, and centralized intake and service delivery system.

Community Legal Resource Network—An East-coast network of solo and small-firm practitioners established to share resources and unbundling support services.

Delaware Resource Centers—A statewide system of courthouse based self-help centers featuring videos, books, pro per forms, legal services intake, and mediation units.

"The Legal Grind"—A coffee shop cum legal office, where patrons sip latte, browse the self-help legal library, and receive individual counsel from the attorney de jour.

Florida Family Court Self-Help Centers—A network of courthouse based self-help centers, complete with legal staff and pro per materials. (In Florida, approximately 65 percent of all divorces and 80 percent of all family law cases have at least one self-represented party. The Florida Legislature thus appropriated funds to improve family court access for self-represented litigants. Dade County furthered this trend by implementing a court rule that every pro se litigant must go to the Self Help Center before proceeding to court.)

"Beach Law"—Brainchild of a private practitioner who stakes out his daily spot on the California coast with his beach chair, laptop, and a sign stating "The Lawyer Is In." This attorney provides on-the-spot legal services to beach visitors, specializing in advice and preparation of planning documents, such as wills and durable powers of attorney.

In Michigan, innovative projects also provide or will soon provide unbundled legal services. These projects include:

Counsel Advocacy Law Line—A centralized telephone intake and service delivery center devoted to providing advice, counsel, brief services, and referrals to low-income and senior people in Huron, Livingston, Macomb, Oakland, Sanilac, St. Clair, and Tuscola counties.

Kent County Legal Assistance Center—A courthouse based legal assistance/self-help center, scheduled to open in September 2001, that will offer computers and web-based software for preparation of pro per pleadings. Attorney and nonattorney support will be provided to assist with technology, provide advice, and make referrals.

Kari Deming is the executive director of the Counsel Advocacy Law Line, a seven-county, two-program centralized intake and service delivery system. Before launching CALL, Kari implemented two single-program hotlines, coordinated a full service and assisted with a self-help domestic violence clinic. She also served as chair of the State Bar unbundling workgroup, and was a member of the Hotline Work Group, which were both part of the Service and Delivery Subcommittee of the Access to Justice Task Force.



Bradley A. Vauter is senior director for Service Delivery in the Access to Justice Department of the State Bar of Michigan. He was in a small private practice in southeast Michigan for seven years after graduation from DCL and has spent seven more years in the delivery and planning of legal services in areas including Livonia, Chicago, Alpena, Marquette, and Lansing.


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