Limited Representation and Ethical Challenges

Abstract

The usual premise of legal representation is that the attorney is to provide a full measure of advice or advocacy appropriate to the needs and resources of the client. The literature on access to justice suggests that a more limited form of representation – sometimes termed “unbundled” legal services – should be encouraged as means of expanding access to legal assistance for Americans of modest means. Unbundling would allow lawyers to offer assistance on discrete tasks, rather than taking on representation over an entire legal matter. Russell Engler in this chapter evaluates the arguments in favor of unbundling in light of research on the effectiveness of limited representation compared to full representation, and the ethical challenges posed in limiting representation to discrete tasks. The topic of limited representation encompasses ideas captured by a variety of terms, including “unbundled legal services,” “limited scope representation,” “limited assistance representation,” and “limited legal assistance.” The concepts emerged as a partial response to the flood of unrepresented litigants and the unaffordability of lawyers for many potential clients. Representation involves a package of discrete tasks, such as gathering facts and advising the client. “Unbundled legal services is a practice in which the lawyer and client agree that the lawyer will provide some, but not all of the work involved in a traditional full service representation.” Long before the emergence of the term “unbundling,” legal aid offices, through hotlines and pro se clinics, delivered assistance short of full representation. As assistance programs for the underserved population proliferated, a number of issues emerged for legal aid attorneys, bar associations, and the courts regarding the trend toward unbundling. This chapter briefly explores justifications for the increased use of unbundling as well as emerging questions regarding the effectiveness of unbundling. The chapter then focuses primarily on the ethical issues involved with various forms of unbundling and related issues that arise with the high incidence of self-representation. Given the reality that new forms of assistance will continue to emerge as part of efforts to increase access to justice, the chapter concludes by setting forth a framework for handling ethics questions in these contexts generally.