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?