Unbundling to Meet the Demands of Self-Help Litigants
By William Hornsby
Nearly 20 years ago, the ABA Standing Committee on the Delivery of Legal Services began hearing more and more about people who were going into court without lawyers, attempting to solve their problems and to obtain legal remedies through self-help, or on a pro se basis. The Committee launched empirical studies focused on Maricopa County, Arizona (the Phoenix area) and made a series of findings. It found that self-help for divorces had increased dramatically during the 1980s, reaching a point where the vast majority of those divorcing did so in that jurisdiction without a lawyer. In the majority of cases, neither side had a lawyer.
Looking at the characteristics of pro se litigants, the Committee found that they tended to have some college education and, in many cases, incomes that would suggest the ability to pay for a lawyer. In other words, at least some people were choosing to proceed without a lawyer even though they could afford one. Furthermore, most of the divorcing parties who proceeded without a lawyer said they would do it the same way if they had to do it all over again. Research gathered by the American Judicature Society demonstrates that pro se litigation is growing in other jurisdictions as well, particularly in domestic relations, but also in other personal legal matters.
This do-it-yourself orientation toward legal services is not unlike that in other areas of contemporary life, such as home repair and car maintenance, for which self-help has turned Home Depot and similar mega-stores into necessary resources. But, where do pro se litigants get the help they need to navigate the justice system and to make decisions about their legal needs? There's no "genetic coding" for this; relying on intuition will not do. While some courts provide self-help support, almost all help is limited to procedural matters. Self-help books and materials are also widely available but are inherently limited in the guidance they provide.
One way of looking at the self-help trend in legal work is to see it as an opportunity for lawyers - a way to provide limited legal services much needed by clients while operating a successful law practice. Lawyers have new opportunities to work with clients to support the clients' pro se efforts without fully representing these clients. Simply put, representing oneself does not necessarily mean proceeding without a lawyer, it can mean proceeding without full representation by a lawyer.
This new way of representing clients has become known as "unbundled legal services," or sometimes "discrete task representation." To understand unbundling, think of the tasks that a lawyer performs: giving advice, investigating, researching, drafting, negotiating, and advocating. Los Angeles practitioner Forrest Mosten, a leader in the unbundling movement, uses a series of popsicle sticks to illustrate how it works. The sticks are tied together with a string to represent full traditional representation. If you untie them, each stick represents one of the tasks of legal services.
If a lawyer offers clients an array of services, the client can pick and choose, and pay for, only those services that the client desires. Perhaps a client only needs information about a legal procedure, which the lawyer provides by giving this information. Perhaps the client wants to know about specific rights, which the lawyer handles after doing research and relaying the results of that research. Or, perhaps a client needs someone to help resolve a difficult issue, where the lawyer participates in the negotiations. In many circumstances, clients may use a lawyer on an unbundled basis, but choose not to use a lawyer at all if that lawyer offers only an "all or nothing" alternative. Therefore, unbundling has the potential of opening new markets for lawyers to serve self-help litigants.
Lawyers who provide transactional services to corporate clients will find this model consistent with the way they do business. However, unbundling has not been the usual approach in providing personal legal services. The difference is in the decision-making process. The corporate client is empowered to make decisions about the legal work he or she wants carried out. But, lawyers are frequently unwilling to allow individual clients the same degree of decision-making power when it comes to personal legal matters. Advocates of unbundling believe that clients are more likely to be satisfied with the handling of their legal matters if they are empowered to make their own decisions.
Unbundling presents significant concerns, however, including ethical compliance and malpractice risks. Some lawyers express concerns that if they provide a client with limited assistance and he or she goes on to bungle the matter, the lawyer will be blamed. While this risk does exist, experience has shown that such adversities are uncommon. For example, the American Association of Retired Persons has operated a system of hotlines for nearly 20 years, providing legal advice to its members with virtually no complaints. And its malpractice insurance premiums are a fraction of those of traditional practitioners. Similarly, prepaid legal service providers have offered telephone advice to their customers for decades and have done so without substantial problems.
ABA Model Rule 1.2(c) permits a lawyer to limit the scope of representation if the client consents after consultation. While this rule would seem to permit unbundling, it does not give lawyers a blank check to provide unbundled services to everyone. An "unbundled practice" is not a license to be foolish. As in any case, when a lawyer has reason to believe that his or her services are not suited to the client's needs, the lawyer has a responsibility not to undertake that representation. Unbundled services are not appropriate for everyone in every situation.
Today's technology is likely to encourage the growth of unbundled legal services. Lawyers are beginning to use the Internet to provide legal advice to a greater number of clients because of reduced geographic barriers. Document assembly can facilitate on-line form preparation. Documents such as wills and articles of incorporation can be done through distance lawyering. Even the process of dispute resolution itself is being done on-line through systems of mediation and arbitration. These new capabilities should expand the availability of legal services to those who are now proceeding pro se.
This trend, in turn, should expand opportunities for lawyers to work with persons who need help in handling their personal legal matters. As we know from 30 years' experience, working with legal assistants is one of the most efficient and cost-effective ways to practice. Lawyers in small law firms who often handle personal legal services for individual clients have been very successful in working with legal assistants to assist in a wide array of tasks, from acting as liaison with clients to conducting legal and factual research to preparing legal documents for lawyer review. Unbundling allows us all to think about the delivery of legal services differently and to conceive of new ways to apply our resources in order to increase access to legal services.
William Honsby is the Staff Counsel for the ABA Division of Legal Services.
