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More states putting a la carte legal services on the menu.

The California Judicial Council recently approved new court rules allowing "limited scope representation"--also known by the more popular terms "unbundled" or "a la carte" legal services--in all California civil cases. Unbundled services allow clients to hire attorneys for specific tasks--for instance, coaching them through mediation, ghostwriting letters, preparing briefs, handling settlement discussions, or going to trial--rather than full representation, in which a lawyer handles a client's case from start to finish.

California joins a growing number of states that allow limited-scope representation. The New Hampshire Supreme Court recently approved similar rule changes, allowing unbundled services in all civil cases. Other states--including Alaska, Colorado, Florida, Maine, New Mexico, Nevada, Utah, and Washington--allow unbundled services to varying degrees. In November, the Supreme Judicial Court of Massachusetts approved a pilot program allowing unbundling in civil cases.

Other states are seriously considering such changes, and several state bar associations and judiciaries have set up task forces to investigate the practical and ethical implications of unbundling.

The concept is not new: Some lawyers have always offered piecemeal representation to their clients for specific matters.

"Divorce lawyers have offered cafeteria-style services for years," said Honey Hastings, a divorce lawyer in Wilton, New Hampshire, whose practice is completely unbundled. "Transactional lawyers have always done so, and lawyers regularly advise people on legal paperwork. The difference now is the ability to handle civil cases."

Interest in unbundling has risen greatly in recent years. In 2000, the Maryland Legal Assistance Network--a nonprofit organization that promotes collaboration among pro bono and community-service lawyers--hosted a conference on the practice cosponsored by the American Judicature Society, the American Bar Association (ABA) Standing Committee on Delivery of Legal Services, and the National Legal Aid and Defender Association.

That same year, the Conference of State Court Administrators and the Conference of Chief Justices sponsored a haft-day panel on self-representation and unbundled legal services. In 2003, the ABA published a handbook on providing unbundled services. (ABA Section of Litigation Modest Means Task Force, Handbook on Limited Scope Legal Assistance, available at www.abanet.org/ litigation/taskforces/modest.)

What's behind the growing drive to unbundle?

"The trend is driven by consumer demand," said Forrest Mosten, a Los Angeles lawyer who was the keynote speaker at the 2000 conference (and a similar one in 2006) and is author of Unbundling Legal Services: Haw to Deliver Legal Services a la Carte for Improved Service and Profits. Mosten added that while accessibility for low-income people is one reason for unbundling's rising popularity, it is also true that many people who can afford lawyers don't hire them, for various reasons.

"You can have very sophisticated, wealthy clients who want to have some say in how they are represented," he said.

The National Center for State Courts, in a report on pro bono and unbundled services, identified four main reasons for the trend: the unavailability of legal help to low- and middle-income people; a "cultural shift to a 'do-it-yourself' mentality" and a belief that legal cases aren't that complicated; the lack of basic legal and courtroom knowledge among pro se litigants; and law practice economics, because "unbundling creates an opportunity for lawyers to expand their client base and serve an otherwise unrepresented population."

Representation for low-income litigants is the advantage most frequently cited by unbundling advocates.

In New Hampshire, for example, the unbundling effort was largely spearheaded by state Supreme Court Associate Justice James Duggan, who chaired the court's task force on self-representation. In its 2004 report, the task force found that there was one pro se party in 85 percent of all civil cases in district courts, 48 percent of all superior court cases, and 70 percent of all domestic relations cases in superior courts. According to the report, a surveyed sample of these litigants "showed that most of them were in court on their own because they could not afford to hire or continue to pay a lawyer."

It also found that 90 percent of tenants in landlord-tenant disputes appeared in court without legal representation and estimated that, based on national statistics, current pro bono and legal-services efforts reach only 15 percent to 25 percent of those who need legal help.

The so-called justice gap is not limited to one state. In 2006, an ABA task force found that while legal aid helped roughly a million poor people a year, "millions more are discouraged and don't bother seeking legal aid because they know help is not available. Despite all the efforts of legal aid programs and pro bono lawyers, an ABA nationwide legal-needs study in 1993 showed that legal help was not obtained for over 70 percent of the serious legal problems encountered by poor people." The ABA has long promoted unbundling as an antidote to unequal access to the courts.

But unbundling has other benefits as well, proponents say: It would help relieve courts of the burdens and delays imposed by pro se litigants, who are often unfamiliar with both the law and courtroom procedures. In an opinion piece in Foster's Daily Democrat of Dover, New Hampshire, Robert McNamara, president of the New Hampshire Bar Association, wrote that "pro se litigants may save themselves money, but they often put the state and their opponents to great expense, while unnecessarily delaying the resolution of their own case." McNamara praised the New Hampshire rule change, saying unbundling "will likely improve outcomes for litigants and reduce the burden on our courts."

Unbundling has been a boon for lawyers, too. SHLEP (the Self-Help Law Express), a Web site that covers unbundling and self-help, calls unbundling "a win-win scenario for lawyers and consumers of legal services." SHLEP noted that new rule changes in the states will clarify ambiguous ethical guidelines and help lawyers reach more clients.

"Unbundling is great for lawyers," Mosten said. "It gives them clients they would otherwise not have. It increases their market share. And, of course, some limited-scope clients may decide after all is said and done that it's too complicated and they want to go full-scope. Finally, it gives lawyers more control of their lives," because they can choose to limit their practice to specific services.

Hastings agreed, saying the new rules allow her to "add to the collection of services I offer" and that "as long as the limits are clearly defined, and the client fully understands what the limits are, they generally find it very appealing. I really don't see any downside to [unbundling] at all."

Unbundling of the large-scale type seen in Colorado, New Hampshire, and now California is still too new for any definitive conclusions about its impact. But most observers give it high marks.

Mosten said, "Everyone wants a Mercedes. But if you can't afford one, is your only choice to take the bus or walk? Unbundling is like a Chevy: It's no frills, it's reliable, it does the job."
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Author:Sileo, Carmel
Publication:Trial
Date:Mar 1, 2007
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