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Be-Fulfilled | Unbundling CP

Unbundling CP

by Kevin Scudder August 22, 2013

In the June 2012 issue of the ABA Law Journal David L. Hudson Jr. wrote:

One of the most urgent challenges facing the U.S. justice system is finding ways to increase public access to affordable legal services, but growing numbers of people aren’t waiting for the legal profession to come up with solutions.

Is this goal one that is embraced by the Collaborative legal community? If so, is the Collaborative community, legal or otherwise, doing its part to achieve this goal?

Mr. Hudson’s article cites research confirming what many of us already know: an increasing number of people with low and moderate incomes are increasingly turning to self-representation to address their legal needs. What one may not realize is that the increase includes businesses, not only individuals.

Forrest S. “Woody" Mosten, who Mr. Hudson calls the “Father of Unbundling”, is quoted as saying that unbundling “ . . . presents a perfect match between consumer need and lawyering success” and that “[e]veryone understands [unbundling] is good for the consumer – and if it is good for the consumer, then it is good for the profession.”

My question: Is Collaborative Practice conducive to an unbundled service approach?

I think the answer is a definite yes.

With the proper informed consent, transparency, and a commitment to Collaborative excellence by the professionals, is there any reason for us not to enter into limited-scope representation agreements with our clients that expressly states the extent of our involvement? Some of us are already doing this by offering streamlined Collaborative services.

In February 2013 the ABA House of Delegates adopted a resolution “encouraging lawyers ‘to consider limiting the scope of their representation including the unbundling of legal services.’” This resolution, as Mr. Hudson notes, “also supports efforts ‘to assure that practitioners who limit the scope of their representations do so with the full understanding and recognition of their professional obligations.’”

Which brings us to the ethics of providing Collaborative unbundled legal services. Rule 1.2(c) of the ABA Model Rules of Professional Conduct (check your local ethics rules to see if your State Bar Association has adopted this or similar rule) states that:

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

The comments to the rule require that “ . . . the limitation must be reasonable under the circumstances.”

If we are to offer unbundled legal collaborative services it is essential that we follow these guidelines:

1. Align the client’s expectations with the unbundled service. “The client might believe that by hiring an attorney for a limited purpose, a client’s overall objectives may be achieved, when it is almost impossible for that to occur with the limited services the lawyer offers.” [Peter A. Joy, Professor at Washington University School of Law]

2. Have a process for evaluating whether the case is appropriate for unbundled Collaborative services. The intake process used by a lawyer must be in place ahead of the intake and be designed to make sure it is “reasonable to unbundle for the client’s specific legal needs . . “ [Stephanie L. Kimbro, Esq., Wilmington, N.C.]

3. Have it in writing. Have a checklist the client signs that details the exact work to be done.

Aligning the client’s expectations with the work to be performed and having the client and attorney sign a limited-scope agreement is allowed in other areas of practice. Is there any reason the same should not apply to Collaborative Practice? Starting with the premise that a Participation Agreement must be signed even if the service is unbundled, what would Collaborative Unbundled Practice look like to you?

Comments (14) -

Maury@mowhitelaw.com
Maury@mowhitelaw.com
8/27/2013 9:47:12 AM #

In my view, Collaborative Practice is by its very definition an "unbundled" services situation. Divorce coaches are not therapists; financial coaches are not security sales persons; and lawyers are limiting their representation to non-adversarial roles of advisor, negotiator and evaluator, and not the adversarial advocate. The Model Rules of Professional Conduct (and enacted Rules in Ohio and other states) define advocacy in terms of competitive marshaling of evidence in furtherance of a client's position...the adversarial system. I have found it very easy and understandable to explain to clients that a lawyer can function in four different roles and you are hiring me for three of the four. They get it, because generally that is what they are looking for. The tough part is when the spouse's attorney has not actualized a compartmentalized view of professional responsibilities.  

View my profile on www.collaborativepractice.com

mike@seattledivorceservices.com
mike@seattledivorceservices.com
8/27/2013 10:55:44 AM #

I guess it depends on what you mean by unbundling in the CL context.  If you view what we do now as unbundled, then there's not much to talk about.  But if you seeing unbundled services as being different from what we currently do, then it needs to be defined.

To me, unbundling has always meant allowing a client to pick and choose what services they want from us as attorneys and what they are going to do themselves.  If then an unbundled CL case is one in which we don't provide all of the services that we normally do in a CL case, which services could be left out and still be a CL process?  Does this mean the attorneys would not be at the joint meetings?  Or is it something else?  I'm not not clear what the concept is.

View my profile on www.collaborativepractice.com

sah@h-hlaw.com
sah@h-hlaw.com
8/27/2013 11:06:07 AM #

A Wisconsin Supreme Court committee has been looking at Limited Scope Representation (a/k/a unbundled) to propose rules.  In discussing issues with various committee members, collaborative practice as a whole (interdisciplinary or lawyer only) is seen as a form of LSR in that the lawyers' scope of representation is limited to exclude litigation.

Within CP, there are ranges of options and services, including interdisciplinary team members or other professionals.  Kevin's posting would impact both the core client decision about collaborative as a form of LSR and potentially the decision about aspects of the collaborative process such as whether to incorporate interdisciplinary team members.

View my profile on www.collaborativepractice.com

gamache@interchange.ubc.ca
gamache@interchange.ubc.ca
8/27/2013 11:35:56 AM #

Thank you Kevin for pursuing this.  When I first meet clients I unbundle as much as possible and teach them about all the pieces as best I can.  Some pieces need further clarification with other professionals.

One correct to add to this discussion, Collaborative Divorce Coaches (CDC) are indeed therapists (this is the essential criteria of membership in IACP) and at the same time we act in a limited scope as do Collaborative lawyers.  There is a conversation to be had on the unbundling of therapeutic services as well, that helps clients locate themselves in the work with their CDC(es).  For my best attempt at a more sophisticated discussion on just what we have created under the title Collaborative Divorce Coach (regardless of the model), please see the most recent Collaborative Review article on Defining Collaborative Divorce Coaching.

Unfortunately for CDCs we do not have much in the way of organizational forums or support for the development of Collaborative Divorce Coaching outside of IACP.

View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 5:41:34 PM #

Susan.  

Thanks for the information on LSR and collaborative practice in Wisconsin. It sounds like Wisconsin agrees with Maury that collaborative practice is, by definition, unbundled services.

Is that what you are communicating?

Is it possible, in your opinion, to unbundle collaborative even more?  To an even more LSR to entail a limited purpose or number of meetings?

View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 5:45:45 PM #

Thanks for your comment, Maury.

I like the way you parcel a lawyer's task into four parts.  In your retainer agreement do you have a non-litigation / min-contested hearing provision? If so, in your opinion is that allowed under the Ohio RPC?  Would such a clause, in your mind, be sufficient informed consent for your client as to the scope of your representation?  Finally, if a PA is signed is it possible to contract with a client for collaborative representation for one four-way meeting?  Or two?   Do you consider that to be "unbundled", or a limited collaborative representation?

View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 5:48:53 PM #

On Aug 27, 2013, at 2:37 PM, "Maury White" <mwhite@mowhitelaw.com> wrote:

Hi Kevin…the four descriptions of attorney functions are actually from the Ohio Rules of Professional Conduct, which are based upon the ABA Model Rules. I have attached an analysis, which maybe you saw on the World of Collaborative Practice. The issues of informed consent and limited representation are addressed. Yes, my retainer agreement has a provision which limits my representation; I’ll attach a copy (and of course it is permitted or I wouldn’t be doing it; see second paragraph). I believe the fee agreement is totally sufficient to create informed consent in regard to my role; it is in writing clearly stating the scope of my representation. The other aspect to informed consent, under the UCLA in particular, is explaining the other process choices. I believe this requirement is also in the Professional Rules of Conduct and applies equally to litigators (about Collaborative options) and Collaborative lawyers (about litigation). Finally, I do not think it would be ethical to contract for one Collaborative session, unless it would be reasonable to think the matter would be finished in one session. The standard in the Rules of Professional Conduct is one of reasonableness and competency.



Kevin's response to Maury:


I have yet to read your piece in this month's WCP. It is in my "to be read" list.

Right now I am actually in your great state of Ohio. In Oberlin delivering our oldest daughter to college.  What a transition and rite of passage this is. Wish I had time to come visit you and Ross and the rest of the Cincinnati practice group.

Thank you for your succinct information about the RPC's, informed consent, and transparency.  

As to your comment about it not being ethical to contract for one meeting:

I disagree.  I think that skilled collaborative practitioners, ones who are living the paradigm shift and are committed to collaborative excellence, are fully capable of providing unbundled collaborative services based on reasonableness and competency.

Imagine the wonderful challenges such representation would bring.


View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 5:50:10 PM #

Susan:


Thanks for the focus on the initial client meeting and informed consent.  That has to be the starting point of any discussion of unbundling of collaborative services.

Your article in the Collaborative Review, and its unpacking of the definition of Collaborative Divorce Coaching, is a great one Susan.

View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 5:51:53 PM #

Thanks for the post, Mike.  

Maury brings in a new element about the nature of Collaborative as unbundled services itself. My post is more about whether we can deconstruct the collaborative process itself. For example, can we contract with a client to represent them in two parenting plan five way meetings, and nothing else?  Say they are working with a Mediator and can resolve everything else. If the clients want to use the collaborative process just for that purpose, would that be considered unbundled?

View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 5:57:50 PM #

From Mike Fancher [mike@seatledivorceservices.com]:


Kevin -

If we are providing full services for a limited issue, I am not sure I would refer to that as unbundled, though I might call it limited scope.  To me unbundled services has always meant unbundling the package of services we offer and allowing the client to choose which services they want to pay for - i.e. an ala carte approach to legal services.

View my profile on www.collaborativepractice.com

kevin@scudderlaw.net
kevin@scudderlaw.net
8/27/2013 6:03:04 PM #

Interesting discussion.

I feel we are saying the same thing, clearly with different nuances.

To me, in a litigation setting unbundled services means that instead of taking a "case" from filing to resolution an attorney steps in for a limited purpose: to prepare pleadings for a motion; to consult; to do some legal research; to negotiate a resolution; etc . . . .

In a collaborative setting the "case", like litigation, is presented as a package from the signing of the PA until final resolution and entry of pleadings.  Unbundling in this instance would be doing any of the little things that make up the collaborative case as a whole.

Where does limited scope representation end and unbundling begin?

View my profile on www.collaborativepractice.com

mweiss@mark-weiss.com
mweiss@mark-weiss.com
8/27/2013 6:27:03 PM #

This is an interesting post.

For the benefit of those living outside the U.S., as I understand it, from a legal ethics perspective the term "unbundled services" is a uniquely U.S. concept, and there is a consensus between the ethics opinions issued in the U.S. to date that Collaborative Practice is a form of "unbundled" practice. Hence, for U.S. lawyers, all the professional responsibility requirements that apply to so-called limited scope representations also presumably apply to C.P. cases (certainly in states with ethics opinions holding so.)

Applicable to all of us is another question that Kevin raises--whether Collaborative Practice protocols should be rigidly applied in all cases, or whether they can be flexible applied. For example, is a coach or child specialist needed on all cases? Must we follow a prescribed set of steps on every case? This seems like a great question.

Several years ago, Peter Roussos wrote a well-known article in Collaborative Review in which he analogized C.P. with flying an airplane. The passenger may select the fare, flight time, and destination, but does not have the capacity to actually safely fly the plane; for that reason, trained pilots fly the plane. As I understood it, the lesson is that in divorce, all too often the clients lack the perspective, skills, and knowledge to make the best process choices that will help them arrive at their chosen destination--an agreement. Without themselves having the training and experience of seasoned Collaborative Professionals (not to mention some distance from their own matter), they are not well-situated to make good process decisions themselves. And, of course, poor process choices necessarily result in dissatisfaction and increased cost.

I agree with what I take to be Roussos' thesis that the professionals in CP cases have not just the role but the responsibility for process guidance and facilitation, to me the central role of all professionals in Collaborative Practice. Rarely have I met clients who truly understood the implications of their process choices; only after a deeper discussion did they start to understand the implications--which in my mind I equate with informed consent. If Collaborative professionals are hired as the process experts, then it would seem that leaving the process delivery choice entirely at the whim of clients' sentiments deprives them of the professional skills and benefits for which the professionals are hired.

At the same time, I also think that the rigid application of protocols is also problematic--after all, we might have designed a size 42 process and not everyone wears size 42. Two interesting questions to me are how practice groups/teams navigate and respond to different clients' needs and requests, and adjust the delivery of services to address them.

Unlike conventional work, Collaborative professionals necessarily work in a team environment--with the result that any decisions will impact at least four people (more people if the case is handled with an interdisciplinary team.) When we work together in a team environment, everything goes smoother when everyone shares common expectations. At a baseball game, a catcher can't reliably catch without having an expectation about the pitch. One of the key benefits of protocols/common procedures is that they create common expectations among the professionals, which allows them all to deliver what is expected. Whenever there is a departure from process protocols/conventions, one important question becomes how to establish expectations for all team members ... and whether the benefit of change outweighs the cost.

I agree that flexibly adjusting the delivery of services to fit the needs of clients is important. The important thing in my mind is that it be transparent, everyone be fully in agreement, the expectations are clear, and that all (clients and professionals) understand the implications of the adjustment. Oh ... and that the integrity of the process always remains intact.

View my profile on www.collaborativepractice.com

Kevin@scudderlaw.net
Kevin@scudderlaw.net
8/28/2013 6:32:33 AM #

Mark:    

Your post includes so many things I love about Collaborative Practice (in no particular order):

Transparency; team; teamwork; clients; intention(al); informed consent; commitment; collaborative excellence;dialogue; mindfulness; trust; flexibility; protocols; expectations; and integrity.

Just as Susan Gamache did a wonderful job of unpacking the definition of Collaborative Divorce Coaching in her Collaborative Review article, I like the way you unpack the definition of the Collaborative Process.

View my profile on www.collaborativepractice.com

covy@ais.net
covy@ais.net
8/28/2013 8:55:50 AM #

This is a very interesting concept.  It is one that, I admit, I had not really thought about before. I agree that, by its very nature, collaborative practice is a form of limited scope representation.  But, is it possible to either limit that representation further and provide clients with an option to select certain services while declining others? I think the answer is yes.

One clear way that services could be limited is by issue.  Collaborative professionals could offer "limited issue collaboration" in appropriate cases.  

Say, for example, that clients felt that they could work out the terms of a parenting agreement themselves, but needed help with the financial aspects of their divorce.  Wouldn't it be possible to handle the financial aspects of the case through the collaborative process and allow the clients to work out the children's issues themselves, or with the help of a mediator?  Of course, if that's what the clients wanted to do, you would have to have a clear understanding up front about who was going to write the actual parenting agreement or custody judgment and how it would get entered in court.  But, I think that as long as the clients were clear about what services were being provided, and everyone agreed to the limited scope of services in writing and in advance, it could be done.

What seems less possible than limiting the scope of services to address only certain issues is to "unbundle" the services provided.  I can't think of a way that collaborative professionals could effectively and ethically provide just some portion of their services while still remaining true to the collaborative process model.  I suppose you could limit the collaborative process to a particular number of meetings, but unless the clients actually came to a resolution of their issues within those meetings, everyone will have wasted their time, and the clients will have wasted their money. I also think that type of "unbundled service" would undermine the collaborative practice as a whole.  Clients who engaged in a limited number of meetings without resolving their case would then leave believing that the process had "failed" simply because they didn't give it adequate time to work.

Overall, I think that the collaborative process can be flexible. What's more, in today's marketplace, it needs to be flexible.in order to be useful to clients and to continue to grow.

View my profile on www.collaborativepractice.com

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