MEMORANDUM

To: Rachelle M. Resnick, Esq., Program Manager
Clark County Family Law Self Help Center
From: Rob Bare, Bar Counsel
Date: March 31, 1999

RE: Ethics Issues Regarding the Concept of Unbundled Legal Services

I. Unbundled Legal Services - a Definition

One option that an individual utilizing the Family Law Self Help Center's services has is to utilize an attorney who may provide legal services known as "unbundled" legal services. This means that the attorney will represent the individual client on only a part of the case, leaving the remainder of the case to be addressed by the client on their own.

For example, perhaps an attorney would be engaged to draft, file, and litigate to a conclusion a motion concerning spousal support. Alternatively, for example, an attorney may be retained only to draft and finalize a qualified domestic relief order (QDRO). In these examples, or in other relevant instances, the attorney would be involved only in dealing with the one specific legal issue, one part of the case, and would not be involved in another part of the case. This means, again, that in regard to other parts of the case, the client would address those on their own.

II. Supreme Court Rule 152 (Scope of Representation)

This ethics rule states in relevant part that "a lawyer may limit the objectives of the representation if the client consents after consultation." The interpretation of this rule over time, along with its clear meaning, is that the burden is clearly on the attorney to make sure that, in a limited scope of representation situation such as providing unbundled legal services, when the client leaves the office, so to speak, the client is fully aware of the limited nature of the attorney's representation. The reason this rule exists is to avoid a situation where a client draws a conclusion that an attorney is providing a service that is actually not being provided. Under the above ethics rule, it is important to remember that, again, the burden is on the attorney to make sure the client fully understands the limited scope of the representation. Of course this is done initially by fully consulting with the client and reaching a meeting of the minds (so to speak) regarding what the lawyer will do and will not do, and of clearly leaving certain portions of the case to the client to handle on their own,

I believe the best practice which should be utilized to insure that both the client and the lawyer in the unbundled legal services context fully understand the limited scope of representation is the following. In every case, the attorney and client should execute a written retainer agreement. Therein, in no uncertain terms, the following should be spelled out:

Attorney has been retained to provide "unbundled" legal services. This means that attorney will represent client on only a part of the case, leaving the remainder to be addressed by the client on their own,

In this specific case, Attorney will provide the following legal services:

[Attorney should fully spell out the limited scope of his/her representation, specifically detailing legal services to be provided and not provided.]

In practice, the above concerns pursuant to SCR152 may be some of the most important. This is because, it has been my experience, that when attorneys and clients fail to reach a mutual understanding as to what an attorney is doing and is not doing when the scope of representation is limited, major problems inevitably occur. This is because the client who draws the conclusion that the lawyer is doing something that he/she is not will often times be disappointed and angry when that matter is not handled. They then follow-up with the filing of a grievance with the State Bar of Nevada alleging the attorney failed to address an important aspect of the case. As shown above, this problem can be avoided by dearly spelling out the limited scope of representation in the unbundled legal services context.

III. Supreme Court Rule 155 (Fees)

This ethics rule deals with a lawyer's fees. The main tenet of this rule is that a lawyer's fee shall be reasonable and the rule goes on to list various factors to be considered in determining the reasonableness of a fee. Further, the rule requires that when a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client before or within a reasonable time after commencing the representation.

As with the scope of representation concern above, I believe the best practice would be to fully spell out, in writing, as part of the retainer agreement, exactly and specifically how the fee will be calculated. This should be done in a manner which leaves no question in the mind of the client as to what the attorney's fee will be based upon and how it will be calculated

IV. Supreme Court Rule 156 (Confidentiality of Information)

This ethics rule deals with the most basic tenet of ethical law, that being that an attorney has a duty to keep confidential and privileged certain communications and information relating to representation of a client unless the client consents to disclosure after consultation.

Applying the duty of confidentiality to the unbundled legal services concept, it should be made clear that though the attorney may be involved with only a portion of the case, nonetheless, the duty to keep client confidences still remains,

V. Supreme Court Rule 157 (Conflict of Interest: General Rule)

This ethics rule states in relevant part that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client or if the representation may be materially limited by the lawyer's responsibilities to another client, to a third person, or by the lawyer's own interests.

In the unbundled legal services context, conflict checks similar to those conducted by attorneys in any other areas should be performed. That is to say, again, though the attorney may be involved only in a portion of the client's case, once becoming involved or even contemplating becoming involved, the lawyer should conduct a conflict check to see if any of the factors spelled out in SCR 157 are present.

VI. Supreme Court Rule 159 (Conflict of Interest: Former Client)

This ethics rule deals with potential conflicts of interest that may be present, given that the attorney may have represented another person in the same or substantially related matter in the past. As with SCR 157, here, again, an attorney involved in the unbundled legal services context must run a conflict check regarding former clients whom the lawyer may have represented either in the same or a substantially related matter to that which is presented by the current client.

VII. Conclusion

The above represents the most relevant ethics rules that may be encountered in practical application by clients and attorneys in dealing with unbundled legal services. Certainly, all other ethics rules that govern the practice of attorneys in the State of Nevada apply as well. However, the above seem to be, in my experience, the most relevant rules impacted by the concept of unbundled legal services. It seems that utilization of unbundled legal services by litigants in the family law arena can benefit both the public and the Bar. I believe all will run well as long as clients and attorneys clearly understand their prospective roles.

Source:

Rob Bare, Bar Counsel
State Bar of Nevada
600 East Charleston Boulevard
Las Vegas, NV 89104

P: (702) 382-2200
F: (702) 385-2878