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Managing the risk of unbundled legal services
The session, "The Ethics, Benefits and Dangers of 'Unbundled' Legal Services," moderated by Karen R. McCarthy of Bar Plan Mutual in St. Louis, assessed how lawyers can safely and properly limit the scope of their representation. Panelist M. Sue Talia, a private family law judge in California as well an author and nationally recognized expert on limited scope representation, said that unbundling or limited scope representation is a middle class phenomenon. "Limited scope representation covers discrete tasks. It still involves an attorney-client relationship regarding confidentiality and ethics concerns." She added that LSR is not dangerous, not unethical and not going away. "Demand for limited scope is driven by the fact that clients cannot afford a full-service lawyer anymore, but they still need help because they still have legal problems. These services are especially appealing to solo and small firm lawyers who are increasingly looking for new ways of serving clients," she said. The Internet has an impact as well. Talia pointed out that with clients able to find so much information online for free, there is a limited amount that they will pay for similar knowledge. What this means is that lawyers must be very careful in drafting their agreements outlining limited scope representation. "We need to train lawyers what the bright-line box is regarding written materials ranging from drafts of engagement letters to letters ending the attorney-client relationship. The key is to make sure lawyers have the materials and information to do limited scope representation safely and competently," she said. Panelist James M. McCauley, ethics counsel for the Virginia State Bar, said that limited scope representation is explicitly allowed under ABA Model Rule1.2. That rule allows lawyers to limit the scope by which client objectives can be obtained. McCauley points out that offering unbundled legal services means that the lawyer provides representation that is reasonable in the circumstances and that the client consents following adequate disclosures. He said that in a risk management setting, problems occur when the lawyer fails to delineate the scope of responsibility to the client. One of the most difficult areas for outlining responsibilities in an unbundling situation is having the lawyer prepare documents for a client who is a pro se litigant. Ghost writing essentially creates an attorney-client relationship that is not disclosed to the court. Because the lawyer does not appear in court and is not acknowledged in the documents, critics of ghost writing by lawyers say it constitutes fraud on the court. McCarthy noted that other questions arise during settlement offers in limited scope representation cases where the lawyer participated part of the time and the client handled representation. "The problem is that opposing counsel does not know whether to contact the lawyer or contact the client directly." Panelist Christian A. Stiegemeyer, executive vice president and director of risk management for The Bar Plan of St. Louis, put it succinctly: "Simply being a competent lawyer doesn't mean being competent in limited scope representation." He said that lawyers need to know whether they have the right consent forms and they need to write a definitive closing letter that says, "This concludes my representation of you in this matter." Otherwise, he said, the client can make a case that he thought the lawyer was still acting on his behalf. "In a malpractice case, it's not what you said, but what you can prove." Talia agreed that terminating is as important as drawing the bright-line box. "You cannot control the client, but you can control what you say. If the matter is on-going, the lawyer needs to clearly tell the client that she no longer has representation and outline the steps the client needs yet to take." "At the onset, the lawyer is building a record to show that limited scope representation offers the client some service rather than none," said Stiegemeyer. McCauley said that although lawyers have an aversion to closing letters, if it comes to a trial, if you don't have a document, the jury will likely believe the client." He added that lawyers are especially well trained to identify issues. In agreeing to handle a problem, a lawyer needs to point out other issues as well. "If a lawyer fails to point out other potential problems, the lawyer could be at fault." All three panelists agreed that lawyers should not do limited scope representation in areas of law where they are not experts. The session on limited scope representation was one of nine breakouts and three plenary sessions offered at the 2009 Fall Malpractice Conference by the Standing Committee on Lawyers' Professional Liability. YourABA is a monthly publication e-mailed to all ABA members who have provided an e-mail address. If you are already a member and want to sign up for YourABA, click here. If you would like information on joining the ABA, click here. Your e-mail address will only be used within the ABA and its entities. Update your profile | Unsubscribe | Privacy Policy American Bar Association | 321 N Clark | Chicago, IL 60654-7598 © 2009 American Bar Association |
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While the unbundling of legal services allows lawyers to perform discrete tasks on behalf of a client, a session during the Fall 2009 Legal Malpractice Conference in Chicago looked at how lawyers need to protect themselves from unrealistic expectations.