On September 20, 2017, the Michigan Supreme Court adopted new rules providing direction to attorneys for offering ethical, quality limited scope representation (LSR) in civil cases. LSR, also known as “unbundling,” allows attorneys to provide discrete legal services of limited scope, agreed to with the client in advance, rather than traditional full representation. Based on the recommendation of the State Bar of Michigan 21st Century Practice Task Force, the rules proposal was created by the State Bar’s Work Group on Unbundling and approved by the Representative Assembly.
Changes to Court Rules and MRPC
The new Michigan LSR rules go into effect January 1, 2018. Amendments have been made to Michigan Court Rules 2.107, 2.117, and 6.001, and Michigan Rules of Professional Conduct 1.0, 1.2, 4.2, and 4.3. These amendments address critical topics in the LSR context ranging from, among others, defining informed consent and the scope of representation, communicating with a person represented by counsel, to the duration of a limited appearance. To assist in the implementation of the new rules, the State Bar of Michigan has formed an LSR work group. The work group focuses on a variety of tasks including developing LSR-related education and training materials for practitioners, for judges and court staff, and for the general public; drafting template forms and checklists (e.g., LSR engagement letters, motions for limited appearance, etc.); identifying metrics and effective evaluation tools; and similar work to promote LSR in Michigan and help ensure its success.
Benefits of Unbundled Legal Services
The new Michigan rules address exclusively private civil matters, rather than criminal or commercial matters. Experience in the over 30 states that have formally adopted LSR demonstrates that this is best practice. This experience also demonstrates that a formal LSR system tends to benefit all stakeholders: courts benefit from better prepared pro se civil litigants, fewer delays, and a more efficient docket; clients benefit from attorney expertise, and from paying for legal services only where a lawyer is truly needed; and attorneys benefit from gaining access to a previously untapped market of self-represented clients, increasing revenues and growing their practices. LSR most often involves an attorney providing a self-represented party with advice and coaching; mapping out an overall legal strategy to resolve the entire matter; and/or performing one or more discrete legal tasks, such as preparing pleadings, conducting discovery, making a limited court appearance, or negotiating settlement. Since unbundled services require a much lower level of attorney commitment than full representation, they are less costly, putting legal assistance within reach of many low- and moderate-income individuals who otherwise could not afford to retain a lawyer.
Not every type of legal matter, nor every client, is a good fit for unbundling. LSR tends to work best with matters such as landlord-tenant disputes, expungements, non-complex consumer or tax matters, simple divorces, and other domestic and family law issues. In all cases, unbundling requires education and training—of lawyers, clients, judges, and court staff. It also requires informed judicial engagement, rules that provide clear guidance, quality control mechanisms, deliberate attention to ethical questions, and full integration into the entire legal services delivery system.
The first step in crafting an effective limited-scope representation agreement is the initial consultation, which includes considerably more than the traditional intake and a conflicts check. In LSR, a successful initial consultation includes accurately diagnosing the legal issues presented; assessing the suitability of the matter for self-representation at all, including the ethical obligation to accurately assess the client’s capacity for self-representation; determining whether any LSR services are appropriate; determining which tasks the client could perform and which tasks should be performed by an attorney; assessing the client’s ability to pay; determining a rough-draft budget; and, where appropriate, empowering the client to move forward with self-representation, in some cases supported by LSR, in some cases not. Only after such a comprehensive initial consultation is it possible to determine whether to engage the client, and whether the client actually needs full representation by a lawyer, ongoing support via LSR as a self-represented litigant, or little more than some advice and a “game plan” to proceed independently with self-representation.
Whether or not to offer LSR service is, of course, up to each individual lawyer or law firm. Attorneys who choose to provide such services do not need to reinvent the wheel that has worked so effectively in over 30 other states in order to be ready for the January 2018 launch of the Michigan LSR rules. The State Bar is continuing to develop tools, template forms, training materials, and other resources. Watch the State Bar’s website for these resources as they become available, as well as links to the text of the actual LSR rules.