The Law Office of Debbie Weecks
Attorney / Abogada
Post Office Box #1731
Sun City, Arizona 85372-1731 USA
(623) 933-4877
Fall 2002 -- Edited for use by
Maryland Legal Assistance Network
Unbundled
Legal Services
-- An
Alternative Way to Package and Deliver Your Product
I. What
is it?
II. Why?
III. How?
IV. Results?
V. Ethical
Concerns?
VI. History
*
* *
I. What
Is It? Unbundled legal services are another tool for the attorney's
workshop, spanning any practice area if the client is competent to make
decisions and handle his/her affairs.
The typical law practice offers many services as a package for a client
who retains the firm to "handle the case." Think, for instance, to the typical client who enters an
attorney's office in the midst of a divorce.
Perhaps she is distraught over sharing custody, or he is worried over
the prospect of paying child support.
Perhaps many attorneys will offer a free consultation, or maybe some
will offer a set fee for an hour of consultation. One might wonder what percentage of lawyers are arming the client
to better represent him/herself, with no expectation of being hired further?
In the
unbundled arena, we have no such desire or thought of being further
retained. Therefore, our job is
different from the outset. Our task is
to offer an opportunity for the client to gain the maximum possible guidance
within a very limited scope of representation.
There
will likely be an opportunity and a time wherein unbundling our tool chest is
preferable from the attorney's viewpoint over the traditional way in which many
attorneys practice law. This technique
may be already preferable to a portion of the public when appropriate who need
some guidance on legal issues.
Unbundled
legal services, then, is the practice of law delivered in the form of a limited
service. Some examples might include an
advice and counsel session, coaching for a specific upcoming event, aiding in a
negotiation, researching a legal point, or drafting a one-time document. In other words, some clients will handle
their own cases but could use limited guidance where appropriate.
II. Why?
The reasons we would want to offer unbundled legal services are many.
Client's
Viewpoint. There are many reasons
clients may prefer to limit the scope of representation to a narrow legal
service. Here are the most common:
The
typical attorney is charging at an hourly rate that makes retaining counsel
cost-prohibitive. Even those who charge
at lesser rates are expensive if the time spent on a matter is aggregated over
a protracted course.
While
there are many good attorneys who are courteous, professional, and helpful,
there may be an ubiquitous perception by some people that there are attorneys
who even though un-intentionally, may create problems rather than find
solutions. Some people express that
they believe attorneys may lack skills at finding answers that leave everyone a
winner; which perception might add fuel to a fire rather than calm the waters.
Sometimes,
clients who are in the midst of litigation or some other transaction complain
that their attorneys don't return calls or explain the case well. The clients may be nervous, but their
perceptions are real to them. They need
a second opinion. They need to
understand the law, the case, and the choices.
Attorney's
Viewpoint. Attorneys benefit from
offering advice and counsel sessions, as well.
For example:
We get
to give second opinions! What a great opportunity to analyze and help!
Sometimes we may dispel unrealistic goals but often, we may provide new
insights and creative suggestions.
Often,
we get to guide the case at its inception by viewing many alternative scenarios
with the client before the client worsens a situation with inappropriate or
unwise action.
We get
to pre-screen a prospective, long-term client while our obligation is still
useful but limited.
We get
paid in full for the time spent. In my
own experience, I have never had a billing issue regarding a fee due at the end
of an advice and counsel session, probably because clients have received value
for a limited cost.
III. How?
Unlike some people's perceptions, the initial consultation need not be merely
an opportunity to meet and explain about replenishable retainers. An initial consultation could, instead, be
several hours long with an express understanding that the attorney's role is
limited to offering advice both procedurally and substantively based upon the
information the client is able to provide.
The client needs to understand prior to such a session that the purpose
is to educate, knowing that the client may choose to proceed pro per
thereafter. The client should be told
at the time the meeting is arranged that the consultation will be an
"advice and counsel session" in which the attorney and client will
review the facts, any relevant documents, and any legal history of the
case. Only after the attorney reviews
the full history with the client will the attorney be able to advise as to how
the client might proceed, whether through counsel or on one's own. The client should be urged to bring a
checklist of any items s/he would like to cover, knowing that the session will
end by a review of that checklist to be sure no client concerns are overlooked.
As the
session is underway, the attorney indeed will educate. In any area of law, there are concepts that
are foreign to most clients. There may
be statutes, cases, and sometimes regulations and rules. The client may ask for an appointment
thinking she needs a conservatorship to pay mother's bills, but doesn't know
that if mother is capable, a power of attorney may suffice. Or, a client may think he has an issue of
visitation of the children, but doesn't realize that he has the same right to
seek custody as the mother. Sometimes
the client believes s/he has been defrauded because the client doesn't
understand the paperwork and the transaction.
Other times, the client thinks his agent is a best friend, only to learn
the agent has misappropriated funds. I
suggest that the misconceptions may not always be dispelled in a more
conventional consultation model because the time allotted may be limiting and
because the purpose of a traditional consultation may differ from the unbundled
goal. In the advice and counsel
session, however, the sources of law, burdens of proof, resources available,
and possible paths with various outcomes can be explained and explored.
IV. Results?
Within my own practice, I believe my clients are well informed before they make
choices. Many clients who have endured
a long advice and counsel session call me with the follow-up success
story. Usually, those clients avoid
unnecessary litigation and they seek out the win/win result. In those cases, the matter may end with
signs of gratitude and referrals.
Often, of course, clients wish to retain the attorney further. When that happens, we can be a team wherein
the client chooses a path that affects his/her life knowing the possible
downfalls and benefits. The client
takes the risks associated with one's
chosen course of action, rather than the attorney deciding the road when that
choice and any fallout from the choice will affect the client's life.
V. Ethical
Concerns. There are ethical
concerns, as in any model of how one practices law. The ethical rules permit a limited scope of representation. I would submit it would be unethical,
however, to offer continual advice and perform continual drafting and not
disclose to all parties or counsel that an attorney has been retained.
The
attorney must likewise be careful not to misrepresent to a third party a larger
scope of representation than that which is undertaken. For instance, the rules of the Superior
Court of the State of Arizona in Maricopa County do not provide for a one-time
appearance in an emergency or for a temporary petition hearing. Rather, the attorney is in the case once the
appearance is filed in a court case until the court permits a withdrawal.
Finally,
I am asked whether offering unbundled legal services presents a conflict of
interest. I believe the answer would
be, simply, no. Every limited scope of
representation involves a client for whom there exists an attorney-client
privilege and an obligation to do a conflicts check. None of these obligations on the attorney is any different than
the traditional model.
VI. History. The
Superior Court of Arizona in Maricopa County recognizes that many people can
not or will not hire attorneys in certain types of cases, although all
litigants are still responsible for proper pleading, or paperwork filed with
the Court. In a pioneering move, our
Superior Court set up a unique do-it-yourself library called the "Self-Service
Center." The Self-Service Center
offers forms and instructions, currently for minimal charge ($2 per set), at
the courthouses in the Northwest Regional Court Complex (14264 West Tierra
Buena Lane, Surprise, AZ 85374), in
Phoenix (101 West Jefferson), and in Mesa (222 East Javelina, 1st floor). Additionally, forms are available for
downloading (on the Internet at http://www.superiorcourt.maricopa.gov). "How-to" information is available
by calling the 24-hour line at 602-506-7353.
Taped information on areas of law is available at 602-254-4099.
Self
Service Center forms available include domestic relations (divorce, custody,
paternity, support), requests for voluntary mediation and certain fee waivers,
obtaining guardianships and conversatorships, forms for informal probate
(appointment of personal representative and transfer of property), and domestic
violence forms, along with some other civil litigation forms.
The
Court also keeps rosters of attorneys and mediators who qualify to help those
people using the Self-Service Center.
These are not free professionals.
They charge fees. However, they
have met the Court's criteria. In the
case of the Attorney Roster, the attorneys involved are willing when
appropriate to offer "advice and counsels," helping clients with
phases of litigation rather than entering an appearance and being hired for the
duration.
Our own
Superior Court, then, took a bold step into an unknown arena to make legal
services available to pro se (or pro per) litigants recognizing
that most of them will not hire an attorney long-term. Our Superior Court has asked us to agree to
offer unbundled legal services as a way of providing a valuable tool to the
public.[1] For some of us, unbundled legal services is usually inseparable
from the delivery of affordable, useful, good law.
Encouraged by the Superior
Court's position but recognizing some limitations in court rules, on May 5,
1999 I filed a Rule 28 Petition for Rule Change with the Arizona Supreme
Court. My petition was ordered circulated
by the Arizona Supreme Court in June 1999 as case #R-99-0016 [In re Rule
42, ER 1.16, and Rule XIII(c)(2), Uniform Rules of Practice] regarding limited
appearances in court cases. While the
comment period passed, prior to a ruling on the petition, the Arizona Bar's
Board of Governors requested its counsel to seek a delay, pending the outcome
of the ABA Ethics 2000 project.
Resultingly, my petition went on "continued" status. In the meantime, the State Bar reviewed the
ABA Ethics 2000 project results and has circulated its own proposed new ethical
rules. Those rules span the entire
ethical code, leaving in tact the availability of limited scope of
representation. The reader may download
that State Bar's draft and obtain updates of that status at AZBAR.ORG.
The issue has made its way to the
national forefront. As for the Ethics
2000 feedback, the Director of the Center for Law and Social Policy, Alan W.
Houseman, presented testimony regarding the need for and development of Unbundled
Legal Services in February of that year.
From October 12th through 14th, 2000, the Maryland Legal Assistance
Network held a conference organized by the Maryland Legal Services Corporation
and co-sponsored by the American Judicature Society, the American Bar
Association's Committee on the Delivery of Legal Services, the AARP Foundation
Legal Advocacy Group, the National Legal Aid and Defender Association, U.S.
Legal Services Corporation, National Association of IOLTA Programs, and
Maryland law schools and bar organizations.
The title was "The Changing Face of Legal Practice: A National Conference on 'Unbundled' Legal
Services."
The materials from the conference
are quite encompassing of the attitudes and questions that this Changing Face
has created and are reproduced in some small part with this essay with the
generous permission of the Maryland Legal Assistance Network. Its website tracks some of the developments
related to unbundled legal services.
Log on at www.unbundledlaw.org.
I hope the materials provided
herewith will offer a glimpse of the dialogue that has developed as bar
organizations struggle to remain competitive, offer quality, and promote a
professional atmosphere. Ms. Owen, Mr.
James, and I are pleased to have the opportunity to offer a glimpse into this
developing method of legal service delivery.
Unbundled legal services promote client education and meaningful
decision-making, while leaving open the possibility of more complete
representation when indicated and desired.
___________________________________
Endnote:
The original version of this article was written for an attorney
audience. The seminar at which the
article is intended to be presented is sponsored by National Business Institute
(1-800-930-6182 / www.nbi-sems.com) on October 22, 2002 in Phoenix. It is entitled "Unbundled Legal Service
in Arizona Family Law." The
scheduled presenters are: Mr. Bob James, Director of the Self Service Center of
the Superior Court of the State of Arizona; Attorney Becky Owen of Phoenix, AZ;
and the author, Attorney Debbie Weecks.