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Rules that allow lawyers to “unbundle” their services-to represent typically cash-strapped clients for parts of their litigation-are spreading across the United States. In the past six years, nine states-Alaska, California, Colorado, Florida, Maine, Nevada, New Mexico, Washington and Wyoming-have adopted unbundling rules. New Hampshire and Utah are in the process of changing their rules. Iowa, Illinois and Ohio are not far behind, while Connecticut is in an earlier exploratory phase, the results of which are unpredictable. Proponents argue that unbundling provides a public service to clients who would not otherwise have any legal representation. They say it is also a potential stream of untapped revenue for law firms. Critics counter that clients are better served when represented throughout their litigation. Unbundling allows lawyers to limit their involvement in litigation in the same way that they often have contractually limited their involvement in transactional work for businesses, or have contracted to take a case to trial, but not to do the appeal. An unbundled lawyer might, for example, advise clients of their rights in a divorce, help clients fill out forms, confine court appearances to child custody issues, and review the judgment. Other than that, clients could be on their own, if they want to proceed that way. The new rules also facilitate and sanction unbundling for volunteer and legal services attorneys who had long provided unbundled services, called “limited-scope representation.” Plenty of business The unbundling of services targets pro se clients whose cases are most often found in family, small claims, housing, traffic and misdemeanor courts. But a 2001 National Center for State Courts (NCSC) study found that 9% of defendants who went to trial in contract cases didn’t have a lawyer either. “Some states-such as California, Washington and Florida-have courthouse facilitators to assist with detailed procedural information and one-on-one form preparation,” for pro se clients, said William Hornsby, staff counsel to the American Bar Association (ABA) Committee on the Delivery of Legal Services. In other states, volunteer lawyers play similar roles. Maricopa County, Ariz., has self-help centers where forms and technological tools take individuals through the procedural morass, he said, while many states provide forms through the Internet. “But for many people that’s just not enough,” said Hornsby, a specialist in the ethical considerations of unbundling. “They need advice and sometimes more.” Unbundling in action Family lawyer Elizabeth Scheffee of Portland, Maine’s Givertz, Hambley, Scheffee & Lavoie is an unbundling enthusiast. About 20% of her clients use her services on an unbundled basis. These clients’ annual income ranges from $75,000 to $225,000, with a few millionaires tossed in, she said. “It really very well suits a domestic-relations practice,” said the former state bar president. “One reason why I really enjoy it is because it allows more legal representation for people of modest means.” She said that if she had to go to her own firm for a lawyer to handle her divorce, “I could not afford myself.” She advises her clients of their rights, and helps them fill out legal forms that they can pick up for themselves at the court for $5 a packet. “Typically, they’re going to need a lawyer to draft the divorce judgment so it contains the magic words that are applicable to the client,” Scheffee said. “For example, if they own real estate there is a certain way it has to refer to the real estate and allocate it to the parties.” Then there’s the division of the pension, “which can be very tricky,” Scheffee said. She hasn’t “ironed out the wrinkles of appearing in court yet,” she said, because she hadn’t had much experience doing it for unbundled clients. Los Angeles solo practitioner Forrest Mosten first championed unbundling in an article in an ABA Section of Family Law journal article in 1991. He has a “no-court rule” in his practice, even when he’s doing full-service work, which means he will not make court appearances. In what he described as a very busy mediation-oriented practice, he recommends a variety of lawyers for in-court work. “Some clients will hire me in an unbundled scope to manage the litigation with the litigator,” Mosten said. “Just like an internist will manage the care of a patient who needs surgery.” Mosten represents clients in the same income group as Scheffee. For the working poor, there are few alternatives, at least in Los Angeles. But one nonprofit law firm, Levitt & Quinn, Family Law Center, provides only unbundled legal services, although the firm often sees cases through from beginning to end. Levitt & Quinn clients are charged on a sliding-scale fee basis that supports only half the office’s overhead. The other half is raised privately. “Two days a week we see new clients,” said Sharon Hulse, acting director of legal services. “There’s a line starting at 7 [a.m.] although the office doesn’t open until 8.” Full-time attorneys average about 80 cases and are paid on the bottom of the legal-aid scale, she said. King County, Wash., Superior Court Commissioner Kimberly Prochnau has witnessed unbundling in action. “Unbundling has increased the pool of volunteer attorneys,” said Prochnau. “It has also made it more likely for people to be able to get an attorney at a critical stage of the proceedings,” even if they can’t afford the kind of retainer that would commit a lawyer through trial For example, while in her county, which includes Seattle, only 6.5% of family law cases are tried, preliminary hearings held within 14 days of filing often result in orders that affect child custody, child and spousal support, and other significant matters. Rules change The unbundling movement gained momentum after the 1999 Scottsdale, Ariz., Conference on Pro Se Litigation, sponsored by the American Judicature Society, which brought together teams from 49 states. Unbundling was one of the “action plans” that came out of the conference. Soon afterward, the ABA formed Ethics 2000, which recommended revisions to its model rules of professional conduct to facilitate unbundling. Those rules were adopted in 2002. Unbundling requires revisions of state ethical rules and rules of civil procedure. The most controversial issues, as evidenced by states’ diverse procedural and substantive rules, are: The scope of an attorney’s duty to investigate the facts. Can a lawyer rely on the facts as presented by a client or is an independent investigation required? Special appearances by counsel. In addition to contesting jurisdiction, should the rules allow them if a court has written notice of an attorney’s limited scope of representation, and should the rules also facilitate an attorney’s withdrawal? Drafting of pleadings. Does a pro se litigant have to tell a court when a lawyer drafts a pleading? Conflicts. Absent knowledge of a conflict, must a volunteer lawyer working under the auspices of a nonprofit organization have to run a conflicts check at his or her firm if the advice a client will get is short-term and limited? The critics The main concerns about unbundling that go beyond rule-making are: Clients are better served if they are fully represented. Legal service clients need full representation far more than sophisticated clients. Clients may not always understand the limits of the representation they have agreed to. While Legal Services for New York City Executive Director Andrew Scherer doesn’t think unbundling is a bad approach for parties of relatively equal bargaining power, when it comes to his clients, he’s no fan. “I think it gets a little more dicey when you have, for example, the government on one side and low-income clients on the other,” he said. That too would apply to situations where private parties who are better equipped to pursue the litigation are on the other side, such as in landlord/tenant disputes, he added. That said, legal services organizations across the country have long offered limited-scope representation. For example, they have often helped clients fill out pleadings while not appearing with them in court. But that doesn’t make it a best practice, Scherer insists. “Advocacy is a dynamic you can’t pick apart,” he asserted. “It involves complex and nuanced skills . . . .Our clients are often trying to keep their families together, keep their housing . . . .It’s a rare instance where unbundling can resolve those kinds of problems.” New York has not eased its rules on unbundling. ‘Home Depot movement’ Ronald Staudt, a professor at Chicago-Kent College of Law, asserted that unbundling is part of the “self-help Home Depot movement. “If people can go three-fourths the way down the road by themselves, is there a good reason that we as a profession shouldn’t let them?” Staudt said. “Our profession is client-centric, and if what the client wants is to pay less and only get pieces of service, we should give them what they want as long as it doesn’t cause an ethical breach.” With grants from NCSC and others, Staudt directed a team that developed “A2J”-Access to Justice-a computer interface that facilitates the ability of individuals to appear unbundled or pro se. It interviews clients online and, using HotDocs software donated from LexisNexis, helps clients fill out legal forms and pleadings. But if a client runs into a complication, the program takes them out of the interview and onto a lawyer-referral Web page. Sites could be programmed to include unbundled live chat and teleconferencing services. States are watching As some states work their way through unbundling rules, others are watching. In Texas, said Lora Livingston, an Austin state district court judge who is the chair of the ABA committee that Hornsby staffs, “We’ve had limited-scope representation for a long time. Anyone who’s worked in a legal aid office knows that.” But Texas has not adopted the kind of rules that most unbundled states have, which allow lawyers to appear in court for limited purposes, and that also facilitate their withdrawal. “I think we should be working on rules that encourage lawyers [to offer unbundled services], because not every client needs soup-to-nuts representation,” Livingston said. “[We need rules that make] it easier for lawyers to withdraw once their agreed-upon tasks have been completed,” she added.

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