Unbundled legal services
Encyclopedia
Unbundled legal services is a method of legal representation in the United States in which an attorney
and client agree to limit the scope of the attorney’s involvement in a lawsuit
or other legal action, leaving responsibility for those other aspects of the case to the client. The method may also be referred to as limited scope representation or discrete task representation.
, "[u]nbundling is seen as a way to increase legal access for middle income consumers..." "Clients find unbundling attractive because it saves money and gives them more control over the process and strategy decisions."
Unbundled attorneys are more likely to offer flat fee pricing to complete tasks, as opposed to the more common practice of hourly billing by full-service attorneys. Depending on the jurisdiction, they may provide legal ghostwriting
services, that is, drafting legal documents on behalf of the client without formally appearing before the court.
They may offer legal coaching to clients who plan to represent themselves pro se
in the courtroom. Or they might do the opposite, agreeing that clients handle their lawsuits up until the trial phase, at which point the attorney takes over.
. Mosten, a California attorney, specializes in family law and divorce mediation. Throughout his career he has emphasized the importance of access to justice, which likely contributed to his involvement in promoting unbundled legal services. Mosten has received the Lifetime Achievement Award for Innovations in Legal Access by the ABA Section of Delivery of Legal Services and the Lawyer as Problem Solver Award by the ABA Section on Dispute Resolution.
Divorce is an area of law that can lend itself to unbundling particularly well, and the development of unbundled legal services has grown largely out of the family law field. Another California family law attorney, M. Sue Talia, helped popularize unbundled legal services. Building upon Mosten’s work, Talia wrote several publications designed to help clients get the most out of unbundling.
Largely because of the advocacy by Mosten and Talia, among others, for the adoption of unbundled legal services by mainstream lawyers, which also emphasized new ethical guidelines for unbundling while maintaining the established rules, the California State Bar formally recognized unbundled legal services as a legitimate and important practice.
Other states soon followed California’s lead in officially permitting unbundled legal services. With its growing acceptance in the legal profession, unbundled legal services began to evolve into other areas of law. Unbundled attorneys also began combining this new representation technique with emerging technologies such as teleconferencing and cloud computing. One of the early adopters of e-lawyering has been North Carolina lawyer Stephanie Kimbro, who implemented a “virtual law office
” in 2006 when she focused her practice on estate planning and business law. Kimbro has since expanded her practice but continues to deliver her services solely by virtual office. She received an ABA Award for Excellence in eLawyering in 2009.
One of the last areas of unbundled legal services to be embraced by state bar associations has been legal ghostwriting. Legal ghostwriting usually entails an attorney drafting a legal document – such as a summons and complaint, an answer or an appellate brief – on behalf of a client. The client maintains responsibility for the other aspects of the lawsuit, such as filing, corresponding with the court and opposing counsel and generally prosecuting their case. Under this agreement, the attorney ghostwriter
is not the attorney of record. Instead, the client appears in the action pro se, meaning they represent themselves. The unbundled attorney might in this case inform the court of their assistance drafting the document.
In 2007 the ABA relaxed its professional ethical rules to expressly permit unbundled legal services and legal ghostwriting in Rule 1.2(c). In April 2010, the New York County Law Association echoed the ABA opinion by formally giving its blessing to the practice of legal ghostwriting as consistent with the state bar’s ethical rules. The NYCLA Ethics Committee on Professional Ethics in its Opinion 742 stated that “…it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel. Disclosure of the fact that a pleading or submission was prepared by counsel need only be made ‘where necessary.”
With the growth of DIY legal document providers like LegalZoom
and RocketLawyer, attorneys have sought to adapt some of the advantages of these companies into their practices.
Certain jurisdictions have called for the implementation of clinics in law schools to teach unbundling legal services to students in a practical setting, and to encourage future lawyers to use the practice.
of a lawyer for his or her client. For one, an attorney owes the court a "duty of candor" in his or her dealings with the court. By working on a lawsuit on behalf of a client but failing to appear, some courts have held this duty is violated.
Moreover, full-service attorneys handle all aspects of a case and can be liable for legal malpractice
should they be negligent in their representation of clients. Critics claim that, should an attorney limit the scope of his or her representation of a client, they might escape a malpractice claim despite having committed malpractice. And some fear that a lack of communication between lawyer and client can lead to confusion about who is responsible for what, and that important issues of a client's case can fall through the cracks.
State bar associations and courts have split on the ethics of unbundling when it comes to legal ghostwriting. Some jurisdictions have ruled that ghostwriting by attorneys is prohibited, claiming that failing to disclose their assistance to a self-represented client would be misleading to the court and their adversary in the lawsuits. Others oppose legal ghostwriting because they believe it would allow an attorney to evade responsibility for a frivolous lawsuit filed by their client.
Certain critics have argued that legal ghostwriting actually gives the self-represented litigant an unfair advantage over his or her adversary, even when that adversary has an attorney. The reason for this is that judges have had a history of giving pro se litigants more leeway in the courtroom to make up for their lack of experience. For example, a person appearing pro se might be allowed to fix a procedural error but had a lawyer had made the same mistake, their error would have led to some adverse consequence. When a self-represented litigant uses an attorney as a ghostwriter, critics argue he or she should not be entitled to any special treatment. However, proponents of legal ghostwriting point out that while judges might grant certain flexibility to pro se clients on procedural matters, no judge would rule in favor of a party simply because they lacked an attorney.
To avoid the potential for this unfair advantage, some jurisdictions, like New York, require an attorney to disclose in papers submitted to the court that they were prepared by an attorney, but attorneys are not required to disclose their name or firm.
Many jurisdictions look at the intent of the attorney for his legal ghostwriting. Where an attorney used the ghostwriting technique to avoid disclosing that he was not admitted in the state where the case was filed, it may be ruled unethical. However the American Bar Association Model Rules of Professional Conduct
have been amended to allow for legal ghostwriting where the attorney merely intends to offer unbundled legal services to a client.
Another ethical concern concerning unbundled legal services is that it leads to the commoditization of law. Rather than treating the law as a profession, critics believe unbundling might lead to a factory-like approach, where cases are treated with a "one-size-fits-all" approach.
However, Richard Susskind
in his 2008 book "The End of Lawyers: Rethinking the Nature of Legal Services," argues that argue that, as technology progresses, lawyers might not have much of a choice than to move toward commoditization. With the emergence of do-it-yourself companies that sell blank legal documents like LegalZoom, lawyers must compete with new low-cost options. Further driving down attorney fees has been outsourcing
, where attorneys educated in American law but not necessarily licensed in any state provide services to law firms at reduced rates.
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
and client agree to limit the scope of the attorney’s involvement in a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
or other legal action, leaving responsibility for those other aspects of the case to the client. The method may also be referred to as limited scope representation or discrete task representation.
Purpose
Unbundled legal services are employed as an attempt to lower costs for the client by reducing the amount of time an attorney spends – and therefore the amount the attorney bills – on a legal matter.YouTube video. An American Bar Association study estimates that "fewer than three in ten of the legal problems of low-income households are brought to the justice system and only four in ten for moderate income households." According to the The New York State Bar AssociationNew York State Bar Association
The New York State Bar Association , with 77,000 members, is the largest voluntary bar association in the United States.-History:The State Bar was founded with a constitution that dates to 1877...
, "[u]nbundling is seen as a way to increase legal access for middle income consumers..." "Clients find unbundling attractive because it saves money and gives them more control over the process and strategy decisions."
Unbundled attorneys are more likely to offer flat fee pricing to complete tasks, as opposed to the more common practice of hourly billing by full-service attorneys. Depending on the jurisdiction, they may provide legal ghostwriting
Legal ghostwriting
Legal ghostwriting is a form of unbundled legal services in the United States in which an attorney drafts a document on behalf of a client without formally appearing before the court...
services, that is, drafting legal documents on behalf of the client without formally appearing before the court.
They may offer legal coaching to clients who plan to represent themselves pro se
Pro se legal representation in the United States
Pro se legal representation means advocating on one's own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal cases. Pro se is a Latin phrase...
in the courtroom. Or they might do the opposite, agreeing that clients handle their lawsuits up until the trial phase, at which point the attorney takes over.
Evolution in the United States
The phrase “unbundled legal services” has been attributed to Forrest S. Mosten. In 2000, “Woody” Mosten wrote “Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte,” which was published by the American Bar AssociationAmerican Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
. Mosten, a California attorney, specializes in family law and divorce mediation. Throughout his career he has emphasized the importance of access to justice, which likely contributed to his involvement in promoting unbundled legal services. Mosten has received the Lifetime Achievement Award for Innovations in Legal Access by the ABA Section of Delivery of Legal Services and the Lawyer as Problem Solver Award by the ABA Section on Dispute Resolution.
Divorce is an area of law that can lend itself to unbundling particularly well, and the development of unbundled legal services has grown largely out of the family law field. Another California family law attorney, M. Sue Talia, helped popularize unbundled legal services. Building upon Mosten’s work, Talia wrote several publications designed to help clients get the most out of unbundling.
Largely because of the advocacy by Mosten and Talia, among others, for the adoption of unbundled legal services by mainstream lawyers, which also emphasized new ethical guidelines for unbundling while maintaining the established rules, the California State Bar formally recognized unbundled legal services as a legitimate and important practice.
Other states soon followed California’s lead in officially permitting unbundled legal services. With its growing acceptance in the legal profession, unbundled legal services began to evolve into other areas of law. Unbundled attorneys also began combining this new representation technique with emerging technologies such as teleconferencing and cloud computing. One of the early adopters of e-lawyering has been North Carolina lawyer Stephanie Kimbro, who implemented a “virtual law office
Virtual law firm
A virtual law firm is a group of lawyers with diverse expertise that are banded together through technological means to provide a suite of services to its clients.- History :...
” in 2006 when she focused her practice on estate planning and business law. Kimbro has since expanded her practice but continues to deliver her services solely by virtual office. She received an ABA Award for Excellence in eLawyering in 2009.
One of the last areas of unbundled legal services to be embraced by state bar associations has been legal ghostwriting. Legal ghostwriting usually entails an attorney drafting a legal document – such as a summons and complaint, an answer or an appellate brief – on behalf of a client. The client maintains responsibility for the other aspects of the lawsuit, such as filing, corresponding with the court and opposing counsel and generally prosecuting their case. Under this agreement, the attorney ghostwriter
Ghostwriter
A ghostwriter is a professional writer who is paid to write books, articles, stories, reports, or other texts that are officially credited to another person. Celebrities, executives, and political leaders often hire ghostwriters to draft or edit autobiographies, magazine articles, or other written...
is not the attorney of record. Instead, the client appears in the action pro se, meaning they represent themselves. The unbundled attorney might in this case inform the court of their assistance drafting the document.
In 2007 the ABA relaxed its professional ethical rules to expressly permit unbundled legal services and legal ghostwriting in Rule 1.2(c). In April 2010, the New York County Law Association echoed the ABA opinion by formally giving its blessing to the practice of legal ghostwriting as consistent with the state bar’s ethical rules. The NYCLA Ethics Committee on Professional Ethics in its Opinion 742 stated that “…it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel. Disclosure of the fact that a pleading or submission was prepared by counsel need only be made ‘where necessary.”
With the growth of DIY legal document providers like LegalZoom
LegalZoom
LegalZoom.com, Inc. is an online legal documentation service that was founded by Brian P. Y. Liu, Brian S. Lee, Edward R. Hartman, and Robert Shapiro,...
and RocketLawyer, attorneys have sought to adapt some of the advantages of these companies into their practices.
Certain jurisdictions have called for the implementation of clinics in law schools to teach unbundling legal services to students in a practical setting, and to encourage future lawyers to use the practice.
Criticisms
Opponents of unbundled legal services often cite ethical concerns about the professional responsibilityProfessional responsibility
Professional responsibility is the area of legal practice that encompasses the duties of attorneys to act in a professional manner, obey the law, avoid conflicts of interest, and put the interests of clients ahead of their own interests....
of a lawyer for his or her client. For one, an attorney owes the court a "duty of candor" in his or her dealings with the court. By working on a lawsuit on behalf of a client but failing to appear, some courts have held this duty is violated.
Moreover, full-service attorneys handle all aspects of a case and can be liable for legal malpractice
Legal malpractice
Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client...
should they be negligent in their representation of clients. Critics claim that, should an attorney limit the scope of his or her representation of a client, they might escape a malpractice claim despite having committed malpractice. And some fear that a lack of communication between lawyer and client can lead to confusion about who is responsible for what, and that important issues of a client's case can fall through the cracks.
State bar associations and courts have split on the ethics of unbundling when it comes to legal ghostwriting. Some jurisdictions have ruled that ghostwriting by attorneys is prohibited, claiming that failing to disclose their assistance to a self-represented client would be misleading to the court and their adversary in the lawsuits. Others oppose legal ghostwriting because they believe it would allow an attorney to evade responsibility for a frivolous lawsuit filed by their client.
Certain critics have argued that legal ghostwriting actually gives the self-represented litigant an unfair advantage over his or her adversary, even when that adversary has an attorney. The reason for this is that judges have had a history of giving pro se litigants more leeway in the courtroom to make up for their lack of experience. For example, a person appearing pro se might be allowed to fix a procedural error but had a lawyer had made the same mistake, their error would have led to some adverse consequence. When a self-represented litigant uses an attorney as a ghostwriter, critics argue he or she should not be entitled to any special treatment. However, proponents of legal ghostwriting point out that while judges might grant certain flexibility to pro se clients on procedural matters, no judge would rule in favor of a party simply because they lacked an attorney.
To avoid the potential for this unfair advantage, some jurisdictions, like New York, require an attorney to disclose in papers submitted to the court that they were prepared by an attorney, but attorneys are not required to disclose their name or firm.
Many jurisdictions look at the intent of the attorney for his legal ghostwriting. Where an attorney used the ghostwriting technique to avoid disclosing that he was not admitted in the state where the case was filed, it may be ruled unethical. However the American Bar Association Model Rules of Professional Conduct
American Bar Association Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct, created by the American Bar Association , are a set of rules that prescribe baseline standards of legal ethics and professional responsibility for lawyers in the United States. They were promulgated by the ABA House of Delegates upon the recommendation...
have been amended to allow for legal ghostwriting where the attorney merely intends to offer unbundled legal services to a client.
Another ethical concern concerning unbundled legal services is that it leads to the commoditization of law. Rather than treating the law as a profession, critics believe unbundling might lead to a factory-like approach, where cases are treated with a "one-size-fits-all" approach.
However, Richard Susskind
Richard Susskind
Richard Susskind OBE is a British author, speaker, and independent adviser to international professional firms and national governments...
in his 2008 book "The End of Lawyers: Rethinking the Nature of Legal Services," argues that argue that, as technology progresses, lawyers might not have much of a choice than to move toward commoditization. With the emergence of do-it-yourself companies that sell blank legal documents like LegalZoom, lawyers must compete with new low-cost options. Further driving down attorney fees has been outsourcing
Outsourcing
Outsourcing is the process of contracting a business function to someone else.-Overview:The term outsourcing is used inconsistently but usually involves the contracting out of a business function - commonly one previously performed in-house - to an external provider...
, where attorneys educated in American law but not necessarily licensed in any state provide services to law firms at reduced rates.