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The New York State Bar Association hopes to make headway this fall on whatever court rules and statutory changes are needed to address the growing trend toward “unbundling” of legal services. State Bar President A. Thomas Levin, of Meyer Suozzi English & Klein, said laws and rules have failed to keep pace with the modern practice of offering streamlined professional services. The trend is geared toward providing more affordable legal services and bringing more attorneys within reach of middle-class consumers. “It is part of our looking at ways of reducing legal costs for people,” Levin said. “The indigent get lawyers and the wealthy can afford lawyers and the middle-class people are stuck in the middle. Are there things we can change in the way legal services are delivered that will reduce the costs to people? One idea is unbundling.” Unbundling can arise when an attorney is retained to handle one aspect of a matter but not the entire matter. That already occurs when, for example, a real estate lawyer draws up the contract but someone else handles the closing. It also comes up in the context of pro se litigants, who may need legal assistance with some chore, such as completing a complicated form, but do not want or cannot afford complete representation. Finally, and most controversially, an attorney may be hired to handle a portion of litigation, such as a motion, without taking responsibility for the entire case. Attorneys and bars nationwide are attempting to address the trend, but there is a lack of consensus in New York and elsewhere as to which aspects of unbundling are currently allowed, which are not, and which raise insurmountable legal, logistical or ethical issues. “It is very difficult as a practical matter to handle part of a lawsuit for somebody and not the other parts,” Levin said. “Where do you stop? Suppose I draw a complaint for somebody and they use it and then there is a motion addressed to the complaint and it has to be amended. Do I have to do that?” Questions like that remain unanswered by current rules, and the State Bar is attempting to develop a consensus. In February, the Commission on Providing Access to Legal Services for Middle Income Consumers, issued a final report with the following recommendations: � Limited appearances should generally not be permitted in litigation. � An attorney should be allowed to assist someone with the preparation of court papers, so long as the lawyer’s involvement is made clear to the adversaries and the court. � A new ethical consideration should be added to the Code of Professional Responsibility to make clear that segmented legal representation, which is already commonplace, is permissible. � Special conflict of interest rules are needed for attorneys who offer limited services to clients of limited means in conjunction with a non-profit or court-aligned legal services program. Levin said he expects that the House of Delegates will consider the recommendations, already approved by the Executive Committee, when it meets in November. The commission, headed by Frank M. Headley Jr. of Bertine Hufnagel Headley Zeltner Drummond & Drohn in Scarsdale, expressed a special concern over the prospect of limited appearances in litigated matters. In its report, the panel said, “unbundling in a litigated matter raises significant practical and policy difficulties, and could generally prejudice the administration of justice and raise ethical concerns regarding competence.” Chief Administrative Judge Jonathan Lippman and Deputy Chief Administrative Judge Juanita Bing Newton support the use of unbundling to assist lower-income people dealing with matrimonial or landlord-tenant matters. The commission said the Office of Court Administration “needs to critically examine how the courts deal with matrimonial and landlord-tenant cases and create programs to accommodate its conclusions.” ‘GHOSTING’ On the so-called “ghosting” of legal documents such as motion papers and pleadings, the commission would impose specific disclosure requirements mandating that attorneys who ghost write identify themselves. That is a harsher line than the one advanced by the Association of the Bar of the City of New York, which contends that attorneys who draft pleadings need not identify themselves by name and need only reveal that the papers were “prepared by counsel.” Regardless of what occurs at the November meeting of the House of Delegates, Levin said a la carte legal services will likely continue to grow, raising new concerns as the practice spreads.

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