By: Stefanie Blahut
The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
Over the past decade, technology has significantly impacted the delivery of legal services to clients. One area that has greatly developed as a result of technological advances is the unbundling of legal services. Unbundled legal service is referred to by a variety of terms, including limited scope representation (LSR), a la carte legal service, and discrete task representation. It is an alternative to traditional full-service representation, where a client pays an attorney an hourly fee to handle a client’s legal matter from beginning to end, from drafting documents to representation in court. To unbundle, a client’s legal matter is parsed into different duties. An attorney offering unbundled services usually will be responsible for at least one of the divided tasks and often charges a flat fee. The client is responsible for the remaining tasks.
How Legal Services are Unbundled and Delivered
Legal services may be unbundled in a variety of ways. For example, an attorney offering unbundled legal service delivery might prepare a client’s pleadings, and the client is responsible for filing these documents and remaining self-represented at hearings. The most common ways legal services are unbundled include:
- Drafting documents (contracts, pleadings, briefs, orders, etc.),
- Reviewing documents,
- Conducting legal research,
- Organizing discovery materials,
- Advising on court procedures,
- Pro se coaching (court strategy and role playing),
- Limited court appearances,
- Offering legal advice, and
- Online dispute resolution
Unbundled legal services are delivered via a variety of business methods. Generally, there are three business methods used to deliver these services: (1) virtual law offices, (2) virtual/physical combination, and (3) physical offices with online components.
Virtual law offices are law firms that only offer services virtually with no physical location. Clients will have access to their case files through a client portal via the law firm’s website. Attorneys will generally use online case and client management tools and document assembly and automation. Communication between the attorney and client is handled virtually.
Virtual/physical combinations are virtual law offices with a physical location. These are very similar to only-virtual law offices; however, attorneys may meet with their clients in person. Oftentimes, attorneys will meet their clients in a public space, such as a coffee shop, or rent a temporary location, such as at the attorney’s local bar association office.
Physical offices with an online component, also referred to as “Brick and Clicks,” have a primary permanent physical office and offer virtually delivered services as well. This format allows attorneys to unbundle in more areas and offer litigation-based unbundling. Additionally, this method of delivery is beneficial when the process of unbundling cannot be as streamlined or automated.
Scope of Unaddressed Legal Needs
Most adults have experienced a civil legal issue in the past eighteen months. In Arkansas, two-thirds of adults have experienced a legal issue, civil in nature, within this timeframe. Yet, most of these individuals do not retain legal representation or even seek relief from the court system as self-represented litigants. Of those that do seek judicial relief, most litigants are pro se and these numbers are rising. Nationally, 60% of parties involved in a civil legal matter do not have legal representation. In Arkansas, only 14% of adults who have experienced a civil legal problem have actually interacted with the court system, an attorney, or legal aid.
Benefits of Unbundled Legal Service Delivery
Unbundled legal service delivery offers a multitude of benefits for clients, attorneys, judges, and court employees. Unbundled legal service delivery is beneficial to clients, because it provides quality legal assistance at a more affordable price. Clients only pay for specific legal services that are customized in areas where the clients need the most help. Attorneys are able to expand their business by offering a more affordable service to individuals that would not have retained legal representation otherwise. Finally, judicial employees on the “front lines,” such as judges and court employees, benefit from unbundled legal service delivery, because litigants’ interactions with the court are smoother and more efficient. Litigants have fewer court appearances, less rejected pleadings, and often experience better results. Overall, it saves staff time and court resources.
Along with new and innovative methods of legal service delivery, such as unbundling, there are legitimate ethical considerations. Unbundled legal services are not appropriate in all cases or for all clients. ABA Model Rule 1.2(c) states “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” (Emphasis added). The attorney has the responsibility of determining whether unbundled services are reasonable and the potential client has the capacity to understand the nature of the representation.
Analyzing a potential client’s capacity involves consideration of various factors. The complexity of the legal issue influences an attorney’s analysis. Other considerations include:
- Whether the potential client’s disposition is suited for the nature of the representation,
- Whether the potential client’s best interests would be better served via full-service representation, and
- Whether the potential client is able to communicate via methods employed by the attorney.
Another common concern is the unauthorized practice of law. It is important for attorneys offering unbundled services to ensure their websites have clear disclaimers to avoid entering into attorney-client relationships where it is not appropriate. Disclaimers should include where the attorney is licensed. Attorneys must be careful in their responses to online requests. A “clickwrap” procedure that provides a price quote and identifies the scope of the representation would be helpful to avoid inadvertently, or haphazardly, entering into an attorney-client relationship. Another concern when offering virtual services is authenticating clients’ identities. Attorneys should have procedures in place to ensure their clients’ identities are authenticated.
Arkansas Rules of Professional Conduct permit unbundled legal service delivery. The Arkansas Bar Association supports unbundled legal service delivery, and it has petitioned for changes to the rules to obtain more transparency for attorneys providing these services. In its petition requesting these changes, the Arkansas Bar Association stated, “It is the Petitioners’ belief that the rule changes proposed herein will equip Arkansas attorneys to adapt to new market realities posed by the DIY movement and help address the overwhelming unmet need among persons of limited and modest means. As a result, members of the Arkansas public who are bypassing lawyers altogether can have meaningful access to the counsel and advice of skilled advocates at prices that are affordable and that compensate attorneys for their time and expertise.”
In May 2016, the Arkansas Supreme Court adopted the proposed changes to the Arkansas Rules of Professional Conduct. These changes affect Rules 1.2, 4.2, and 4.3. Language was added to clarify when to obtain a client’s written informed consent, and an attorney’s communication requirements when the other party is receiving unbundled legal services. The Arkansas Access to Justice Commission is working on additional proposals to permit ghostwriting and automatic relief as counsel of record for limited scope attorneys when the limited representation has been completed.
Attorneys considering or already offering unbundled legal services should contemplate implementing the following best practices in their delivery methods:
- Intake process: attorneys should develop a targeted intake process designed to analyze a client’s legal matter, and whether offering unbundled legal services for the matter is appropriate. Attorneys should also identify whether there are other legal issues that make full-service representation more appropriate. Additionally, attorneys should analyze whether their client has the capacity to enter into an unbundled legal service relationship or if full-service representation is more appropriate.
- Client education: Attorneys should provide information to clients about what unbundled legal services includes, and does not include, in relation to full-service representation. Attorneys should clarify with particularity what the scope of the attorney’s representation includes and what tasks the client is responsible for undertaking.
- Detailed limited scope engagement agreement: Attorneys should compile a comprehensive checklist, in language a layperson would understand, that includes every step in the process. The agreement should include what the LSR includes, and does not include, as compared to full-service representation. This should specify what services will be provided and what services will not be provided to the client, as well as the tasks the clients are responsible for. Attorneys should ensure clients understand the risks associated with not retaining full-service representation.
- Terminating representation: Attorneys should send a letter to clients upon the completion of representation. The letter should unambiguously confirm that representation has ended and recount all of the services provided to the client. Additionally, the attorney should follow up with the client six months later regarding their legal matter.