Is a limited amount of legal assistance better for clients than no assistance at all? Can lawyers make a living and be proud of their professional practice without engaging in contentious litigation? Are client-centered approaches to resolving family law disputes more likely to meet the parties’ interests than traditional lawyer-centered strategies? The answer to all three questions is a resounding “Yes!”
Limited scope legal representation (a/k/a unbundled legal services) is an underutilized tool for family law attorneys. This may be the result of old-fashioned bias that knockdown, drag out litigation is the hallmark of lawyering, but the underuse of limited scope engagements is certainly fueled by simple unawareness of the possibilities and advantages—for both clients and lawyers—of rethinking how lawyers deliver services. Transactional lawyers routinely practice this way: a client hires a lawyer to write his or her will, attend a real estate closing, formalize the creation of a new corporation and other discrete tasks specified at the start of the representation. But, for litigated matters in general and family law matters in particular, unbundling our legal services is underutilized.
Traditionally, clients who can afford it hire a lawyer to handle a divorce from start to finish – filing pleadings and following procedures dictated by statute and rules, gathering relevant financial information, negotiating with opposing counsel and commonly moving contested issues to a courtroom. Although the Pennsylvania Rules of Professional Conduct require us to “abide by a client’s decisions concerning the objectives of representation and whether to settle” (Pa.R.C.P. 1.2(a)), the process is “lawyer-centered” because the lawyers set the tone for the course of action, decide if specific claims are “winners” or “losers” and how best to spin facts to advance positions. Lawyers also commonly pronounce when an issue is at a stalemate and necessitates adversarial litigation.
A lack of financial resources often leaves potential clients altogether foreclosed from such a traditional soup-to-nuts representation. Sometimes clients reject traditional representation for other reasons: the resulting loss of control of a major life event, the fear that lawyers allow their aggressive personalities to ratchet up tension unnecessarily, or the disinclination of litigators to think outside the familiar box of treating each case as a series of discrete positions to be duked out with the opposition.
Whatever the impetus for providing limited legal services tailored to clients’ specific needs, goals and to their pocketbooks, the concept is one all lawyers should understand how to implement effectively and ethically. In 2011, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Philadelphia Bar Association Professional Guidance Committee issued a comprehensive Joint Formal Opinion (2011-100) setting out the ethical framework for limited engagements, including the practice of “ghostwriting”—when a lawyer drafts communications, agreements and pleadings that clients submit as their own work with no required acknowledgment of the lawyer’s input. The opinion summarizes the multiple benefits of unbundling legal services for clients and lawyers and endorses the practice: clients can access at least some legal assistance at critical junctures, improving chances of a better outcome and less-overwhelming process, and lawyers can assist clients without being on the hook to handle a case that would otherwise demand too much of the lawyer’s time and resources.
As with any representation, lawyers entering a limited engagement must be competent to provide whatever assignment they take on and must spell out in writing the scope of work to be provided and how the client will be charged. An additional requirement in limited scope representations is assuring that the client gives “informed consent” to the arrangement. This requires spelling out the potential disadvantages of the limited engagement, see Pa.R.P.C. 1.2(c) and comments (6)-(8), as well as Joint Formal Opinion 2011-100 at pp. 6-8.
At the Pennsylvania Bar Association’s first Peace Institute, held May 3-5 in Philadelphia, unbundled legal services were highlighted as indispensable to lawyers who would rather be peacemakers than adversaries. The message hit a resounding chord for me as a former litigator turned wannabe peacemaker. When I stopped actively litigating, my stated incentive was to start gradually winding down as a full-time lawyer and business owner since controlling my personal calendar was impossible if beholden to court dates. Upon reflection, the stronger reason for ending an over 30-year litigation career was my growing dissatisfaction with how the process made me feel about my work. Clients were sometimes traumatized by their courtroom experiences and unhappy with the results no matter how well-prepared and effective I was. Commonly, I regretted the role I may have played in further polarizing a situation between parties who would continue co-parenting the same children even after my part was finished. Far too frequently, the cost of litigation exceeded my clients’ ability to pay and we had little choice but to write-off fees or enter eternal payment plans, or sue. Conversely, I found that clients were likely to be more satisfied with a custom agreement reached outside the courtroom than with a decision imposed upon them by a judge who really only knows a piece of the puzzle.
Without litigation, my options for continuing to practice my profession were limited. I could serve as a mediator or arbitrator or I could practice in the collaborative law model—all roles I love, but the demand for these services can be spotty; if I still wanted and needed to work full-time, I would have been concerned. I could also meet potential new clients, hear their stories, assess their situations, educate them about methods for reaching resolution, and, if litigation seemed inevitable, convince them to work directly with one of the other attorneys in the firm on a day-to-day basis and with me as the “wise old woman” overseer. The prospect of adding unbundled legal services to the mix was—and is—an exciting idea.
In my firm, we have always offered some form of limited scope legal services. For a flat fee, our comprehensive initial consultation falls into that category: we spend around two hours with potential clients, learning the relevant factual background, providing a one-on-one primer about the aspects of Pennsylvania or New Jersey family law that could affect them, speculating what a “fair” resolution might look like if a court decided the case, and exploring options for resolving the case without adversarial litigation. We also provide limited representation to clients in mediation, providing education, advice and coaching before or during the process; converting the memorandum of understanding produced at the end of a successful mediation into a contract or agreed order; and processing the divorce. Since attending the Peace Institute, I have been motivated to beef up my firm’s use of unbundled legal services, starting with further promotion of the concept on our website and educating potential clients about creative uses of alternative dispute resolution, even when faced with an opponent who refuses to mediate or embark on a collaborative process. In initial consultations, I now include education about unbundled legal services and explore with potential clients how they may be able to tailor the resolution process to fit their desire and comfort when dealing directly with opponents.
Professional liability insurance carriers are favorable to limited scope representations given the high level of client satisfaction according to the ABA’s comprehensive Handbook on Limited Scope Legal Assistance (p. 52) and our rules of professional conduct recognize their value in providing free or limited fee services to clients who would otherwise be unassisted. Unbundling the legal tasks we perform has the potential of better meeting the unique needs of family law clients, improving access to justice and feasibly increasing lawyer satisfaction.
Joni J. Berner is the founder of Berner Klaw & Watson, a boutique family law practice in Philadelphia. She is a member of the International Academy of Collaborative Professionals and Collaborative Law Affiliates of Southeastern Pennsylvania.