MCLE Self Study
Edited by Barbara Kate Repa
The Ethics of Unbundling
By M. Sue Talia
Although limited scope representation, often called "unbundling," has been around for a long time in some areas of legal practice-such as transactional and corporate work-it is becoming increasingly common in mainstream litigation. In limited scope, an attorney assists a client for part of a case by coaching, drafting pleadings, or appearing in court for a single hearing or on a limited issue.
The forces driving the explosive growth of limited scope are compelling. According to statistics recently released by the California Judicial Council, in 70 percent to 80 percent of all family law matters, at least one party appears in pro per. Other high-volume courts in California, such as landlord/tenant, and other courts across the country reflect similar statistics. In addition to the indigent and the working poor, many middle-class litigants find they simply cannot afford traditional full-service representation, and vast numbers are finding new ways to resolve their legal issues.
Many lawyers who see the huge unmet need for high-quality legal assistance have positioned themselves to help-drafting documents, coaching, assisting with strategy and exhibits, or even going to court for a single issue or hearing. The challenge is to practice limited scope competently, safely-and ethically.
Sharing the Work
In limited scope representation, responsibilities for a legal matter are divided between an attorney and client on an issue-by-issue basis, or more frequently, tasks are apportioned between the attorney and client. Most often, the attorney undertakes the more technical or challenging functions and coaches the client on the simpler ones.
The types of services that lend themselves to unbundling are extremely varied. On one hand, there is the traditional legal function of advice and counsel: The client consults an attorney to ascertain relevant legal rights and responsibilities, pays the lawyer for his or her time, and goes away. At the other end of the spectrum, an attorney appears in court for a single hearing or limited purpose. However, the vast majority of unbundled relationships fall into a middle ground: In addition to offering advice and counsel, the lawyer may do legal research as well as draft pleadings and briefs, which the litigant files in pro per. In addition, the lawyer may coach the client on trial tactics or negotiation strategies, assist with preparing exhibits, or script cross-examination questions or the presentation of the case in chief. However, when the court date arrives, the client represents himself or herself in court.
Limited scope representation, done correctly, has the support and encouragement of the State Bar of California and the Administrative Office of the Courts. In fact, in 2001, the State Bar Board of Governors unanimously adopted the Report on Limited Scope Legal Assistance of the Limited Representation Committee of the California Commission on Access to Justice. Pursuant to that report's recommendations, specific court rules and forms were adopted to facilitate limited scope-including Judicial Council Form FL-950, Notice of Limited Scope Representation, a mandatory form allowing judges, court administrators, attorneys, and the parties to track who is responsible for which legal areas when an attorney appears in family law court for a limited purpose.
There is a common misperception that attorneys are prohibited from ghostwriting. In fact, California Rule of Court 5.70 of the Family Law Rules encourages this form of limited scope assistance by providing that an attorney who assists with document preparation is not required to disclose that fact. Disclosure is required only if the litigant seeks an attorney fee order for document assistance. And Los Angeles County Bar Association Ethics Opinion 483 (1995), for example, specifically approves limited scope assistance with document preparation.
In a growing number of matters, attorneys make limited scope court appearances, but the law shaping them is still evolving. Los Angeles County Bar Association Ethics Opinion 483 specifically approves such appearances, so long as the limitation in scope is disclosed. Attorneys who appear on a limited basis in family law matters must serve and file Form FL-950. Limited scope court appearances are not special appearances, which are reserved for challenging jurisdiction; they are general appearances for a limited purpose.
Four key ethics rules, all rooted in common sense, affect the scope of legal representation:
- Limitations must be informed and in writing;
- Limitations must be reasonable under the circumstances;
- Any changes must be documented; and
- The attorney involved must advise the client on related issues.
Informed and in writing. Attorney/client relationships, unless imposed by the court, are created by contract between the attorney and client. Contracts require informed consent. It is the attorney's responsibility to ensure that the client understands the difference between full service and limited representation-and gives informed consent to the limitation. This means that the intake interview must include a discussion of the nature of limited scope representation, as well as a determination of which issues and tasks will be within the attorney's responsibility and which will be left to the client to perform, with or without coaching by the attorney.
An attorney should do a diagnostic analysis of the client's situation as part of any intake-including a discussion of the possible pros and cons of limited scope. (See, Los Angeles Cty. Bar Ass'n Ethics Op. 502, page 4.) This discussion should include the fact that a coached client is not going to know as much about the law as an experienced attorney. The client may be faced with unanticipated legal issues, or come up against unfamiliar evidentiary rules. The trade-off is that he or she is saving legal fees, using a litigation budget where it will do the most good-on the technical and challenging areas-while retaining more control of the overall legal matter.
Fee agreements are critical in limited scope, and the traditional full-service boilerplate agreement simply will not suffice. If a written fee agreement is legally required-such as for contingency fee arrangements or when fees and expenses are likely to exceed $1,000 (Cal. Bus. & Prof. Code §§ 6147 and 6148)-it must be tailored to the individual legal matter and contain a recitation of the limitation on scope. This can be in the body of the agreement or in a checklist attached to it. Either will do, but the written limitation, and the client's consent to it, must be clear.
Reasonable under the circumstances. Limitations in scope must be reasonable under the circumstances. Limited scope is not appropriate for every client, every legal issue, or every attorney. (See comment to Cal. R. of Prof. Cond. 3-400.) For example, it would not be reasonable to coach a client who has limited language skills or serious disabilities to self-represent at all, and even sophisticated litigants may be unable to self-represent on highly technical issues. On the other hand, if a client is capable of handling simpler issues or tasks, an attorney could assist with the technical aspects and coach the client on others. Many otherwise unsophisticated litigants do quite well if their materials are well drafted and explained to them, and if their presentations have been well scripted in advance.
Attorneys should analyze clients' situations, determine whether the issues involved lend themselves to limited scope, and ascertain clients' abilities to assist themselves and to give informed consent to limitations in scope. Note that delegating this analysis to staff members who are not attorneys may well be construed as assisting in the unauthorized practice of law. (Cal. R. of Prof. Cond. 1-300.)
Documented changes. Legal matters tend to evolve over time, and unanticipated issues may arise whether an attorney is offering limited scope or full-service representation. Also, many litigants seriously underestimate the difficulty of representing themselves in court. They may assume that all they need is coaching, only to find when they go to court that the experience is very different from what they saw on television. They may well return to you seeking to expand the scope of your services to include more tasks.
You must also document changes in scope. A new issue must be treated like an initial client intake for limited scope purposes, and the same analysis is required: Is this issue or task appropriate for limited scope? Is the client capable of self-representing with coaching? Does the client understand the trade-offs and agree to the limitation in scope? All of this should be put in some form of checklist, fee agreement, or other writing demonstrating the client's agreement. Also, changes in scope cannot be sufficiently documented by a confirming letter to the client, because such a letter alone does not demonstrate the client's informed consent.
Note that documenting the end of the representation is as important as documenting the limitations and changes in scope. For this reason, if you appear in court, the best practice is to obtain a substitution of attorney at the conclusion of representation. (For family law matters, a simplified procedure for being removed as counsel is also established in California Rule of Court 5.71.) Attorneys who do not appear in court may document the end of the relationship by letter or other notice to the client.
Advice on related issues. The most challenging of the ethics rules affecting limited scope is the requirement that attorneys advise clients on related issues, even if not asked to do so. To be safe, when practicing limited scope representation, it is wise to stay within your area of expertise so that you will not miss potential related legal issues.
Many litigants seeking limited scope help resist discussing related issues. They may be suspicious that you are asking about other issues so that you can charge for more time and increase your fee. It is essential to describe in lay terms why it is important to the client to participate in a thorough diagnostic interview. For example, you may explain that the law is often confusing and complex, and many issues may intertwine legally in unexpected ways.
Though clients do not have to hire you to do the work on related issues, your job is to ascertain that they are aware of all of the potential consequences of the course they are considering so they can make good decisions based on complete information. They may elect to handle a related matter themselves, or to obtain coaching on how to do it. It is important that the client give informed consent if he or she decides to exclude related issues from your responsibilities. For this reason, a client who refuses to participate in a thorough diagnostic interview is probably not a good candidate for unbundling. And beware of litigants who have been through multiple attorneys for the same matter, as they probably have unrealistic expectations for their cases and would not be good candidates for limited scope-or perhaps even full-service-representation.
The importance of advising on related matters is clearly demonstrated in the key case of Nichols v. Keller. (15 Cal. App. 4th 1672 (1993).) In that case, a workers compensation attorney limited the scope of his involvement to the workers compensation claim. The court of appeal held that the attorney also had a duty to advise his client of the existence of a related third-party claim. By failing to do so, the court held, the attorney breached his duty to the client.
Note that Nichols does not stand for the proposition that the attorney was required to represent the client on the related claim-simply that he had a duty to advise the client that the potential claim existed. This underscores why a thorough diagnostic interview is essential, and why it's important to document the scope of that interview.
Standard of Care
Limitation of the scope of representation is not synonymous with limitation of liability. California Rule of Professional Conduct 3-110 requires that attorneys perform competently, and attorneys remain liable for the quality of all of their work within the scope of their responsibility. Also, California Rule of Professional Conduct 3-400 specifically prohibits attorneys from limiting liability for professional negligence within the scope of their engagement. However, the notes to that rule make clear that it is not "intended to prevent a member from reasonably limiting the scope of the member's employment or representation." (Amended by order of the Cal. S. Ct., 9/14/92.) Attorneys owe clients the same duties of competence (Cal. R. of Prof. Cond. 3-110), confidentiality (Cal. Bus. & Prof. Code ¡±6068(e), and lack of conflicts of interest (Cal. R. of Prof. Cond. 3-310) they owe within the context of full-service representation. The purpose of drawing limitations on scope is not to insulate an attorney from liability for sloppy work but to draw a bright line around the area of the attorney's responsibility-and resulting liability-and to exclude from his or her liability those tasks that fall outside the scope.
More Help on Unbundling
Some attorneys shy away from limited scope representation because they envision having to send detailed "nonengagement" letters-for which they probably won't get paid-to each client after the intake interview. A far more efficient method of assuring informed consent and advising on related issues is to use checklists.
The risk management materials posted on the State Bar of California's website (www.calbar.ca.gov) include detailed checklists for accomplishing both purposes during the intake interview, as well as checklists designed to be used if the scope changes or new issues or tasks arise. If undertaking limited scope, it is wise to download those checklists and tailor them to your specific area of practice. When filled out in the course of the client interview, they constitute a contemporaneous record of the discussion, a reminder to ask about related issues, and evidence of informed consent. Initial the completed checklist, have the client initial it, and give the client a copy. This prevents misunderstanding about what issues or tasks are inside the scope of your responsibility. The State Bar's website also includes four fee agreements for different levels of limited scope.
Many unbundling resources have also been collected on the Judicial Council website at www.courtinfo. ca.gov/programs/equalaccess/ethiss. htm#limited.