Unbundled Legal Services Research Articles

Unbundled Legal Services: A Family Lawyer's Guide, by Forrest S. Mosten and Elizabeth Potter Scully, ABA Book Publishing (2017)

Limited scope representation, or unbundling, is an innovative model for delivering legal help to moderate‐income individuals as discrete tasks and in a manner the client can afford. For those family law practitioners willing to meet the needs of a broader range of clients, this book is an excellent place to begin. Limited scope legal services are not for every client, nor is the practice a good fit for every lawyer, but it is one scenario for lawyers responding to the changing demands of the field. In a time when technology and market demands are pressuring law firms to rethink what it means to practice law, Mosten and Scully's book offers a glimpse of the future and practical guidance for how to get there.

Deferring to the ‘unlearned’ friend: professional ethics and the unrepresented litigant

ABSTRACTCourts are starting to keep data about the numbers of litigants who personally file court documents and appear without counsel. The growth in numbers of unrepresented litigants is aptly described as a phenomenon and can be attributed to various causes. Whether or not it is a ‘problem’ however, is arguable. This article explores the concept of the unrepresented litigant in a strange and unnavigable milieu and the ethical duties of lawyers as officers of the court in that context. Focussing on Australian examples, the primary aim of the article is to highlight the lack of guidance in both codes of ethical conduct and judicial commentary on ethical issues for lawyers faced with an unrepresented opponent. Ethical issues at various stages of the dispute resolution process are discussed, including the complexities involved with unbundled legal services. The author argues that as an officer of the court, counsel should assist the judicial officer and consider the situation through a lens of ethical reasoning, while recognising the dilemma this can pose for lawyers who must respect their duties to their own clients. The article concludes that lawyers must abide by their ethical responsibilities whether or not the opponent has representation, while acknowledging that this may be challenging for a variety of reasons. It also suggests that the absence of any reference to unrepresented litigants in ethical codes of conduct should be addressed.

Deferring to the Unlearnedd Friend: Professional Ethics and the Unrepresented Litigant

Australian courts are starting to keep data about the numbers of unrepresented litigants who personally file court documents and appear in court without counsel. The growth in numbers of unrepresented litigants is aptly described as a phenomenon and can be attributed to various causes. Whether or not it is a “problem” however, is arguable. The topic has attracted a good deal of judicial comment, including guidelines for judicial officers from several courts. However, there has been very little judicial comment on the role of counsel who is faced with an unrepresented opponent. This article discusses ethical issues for legal practitioners who deal with unrepresented litigants at various stages of the dispute resolution process, including the complexities involved with the growing concept of unbundled legal services. The article argues that as officers of the court, counsel should assist the judicial officer as much as possible, to comply with the various guidelines that have been issued for dealing with unrepresented litigants. The article concludes that lawyers must abide by their ethical responsibilities whether or not the opponent has representation, while acknowledging that this may be challenging for a variety of reasons.

A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem

The root cause of the unaffordable legal services problem (“the problem”) in Canada is the obsolescence of the management structure of its law societies (10 major defects listed). A 19th century management structure cannot cope with the need for legal services of a 21st century society based upon democracy and the rule of law. Law societies should either be abolished or their management structure changed. A Canadian version of the Clementi Report (U.K., 2004) could effect such abolition.The re-structured management solution recommended is a combination of: (1) a national institute, providing law societies with the continuing and permanently developing expertise for such difficult problems, as does a civil service provide for an elected government, which is missing from current law society management, being management by “part-time amateurs” (benchers) providing their labor as charity; and, (2) a centralized legal research support service providing at cost to all lawyers and judges in Canada, legal opinions and other online materials. Since July 1979, such a service has been provided by Legal Aid Ontario to Ontario lawyers in private practice who service legal aid cases. The Appendix describes a national version of such a service. That service would be the beginning of a much needed national conversion of the provision of legal services from the “handcraftsman’s” method to a support services method. All areas of the production of goods and services have made that transition, where there has been sufficient pressure to make it happen, such as the pressure upon all medical services, and that imposed by a highly competitive commercial market. As a result, no doctor’s office provides all treatments and remedies for all patients, as does each law office for each client.The law societies’ response to the problem is to promote various alternative legal services, based upon a strategy of, “cutting costs by cutting competence” — the competence of the person providing the service, or the service itself; for example: targeted, unbundled legal services; assisting self-represented litigants programs; student and paralegal programs; pro bono for simple, short cases; family mediation services; and, self-help phone-in and online services. Thus, law society benchers do only the easy things because their motivations for becoming benchers, and the need to serve their clients and legal department employers first, conflict with tackling difficult problems, otherwise, they are at risk of being “spread to thin” for time, troubles, and temper.

Redesigning the Family Law System to Promote Healthy Families

Family law professionals should be proactive in seeking and implementing constructive reforms. We identify some successful cutting‐edge reforms: (1) family resource centers, where all kinds of needs can be met; (2) informal family law trials, which streamline clogged calendars and provide an empowering and efficient forum; (3) licensed legal technicians, who increase public access to legal services; and (4) unbundled family law services. Second, we outline a protocol for implementation of reform developed by the Oregon Task Force on Family Law which is effective and replicable. Thoughtful reform of dispute resolution processes will serve family health and promote peace. Key Points for the Family Court Community: Evolving family constellations, private ordering through pre‐ and postmarital agreements, an increase in self‐represented litigants, and shrinking judicial resources are changing family law dramatically. Thoughtful, practical process reforms are needed in order to accommodate these changes. Practitioners should be proactive about seeking out and implementing such reforms. Some reforms already finding success include family relationship resource centers, informal domestic relations trials, licensed legal technicians, and unbundled legal services. We outline a protocol with a proven track record of success for implementing cutting‐edge family law reform.

Lawyers, Power, and Strategic Expertise

This empirical study analyzes the experience of the parties described above, specifically the power, representation, and strategic expertise they bring to a dispute. Our analysis of these factors clarifies how representation may be a solution to the access to justice crisis. We find that a representative helps most parties most of the time. We also find that the other party’s representation and the representative’s strategic expertise are significant factors for understanding representation for civil litigants. This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of data about representation in recent years. The analysis shows wide disparity in representation, with employers (the more powerful party to a dispute or the quintessential “haves”) represented twice as often as claimants (the less powerful party or the “have nots”), as well as a notable difference in parties’ use of procedures in hearings. Using difference-in-proportions tests, this Article examines the interaction of party power and representation and finds that represented parties have better case outcomes than unrepresented parties, though employers see less benefit from legal representation than claimants. In addition, the Article confirms the intuitive result that represented parties are more likely to use procedures than unrepresented parties. Yet, surprisingly, the Article finds that represented claimants who use certain evidentiary procedures have worse case outcomes than represented claimants who do not use those same procedures.We recommend that any policy solution to the country’s civil litigation crisis, whether it is a right to civil counsel, unbundled legal services, lay advocacy, or pro se court reform, must account for these factors. To achieve this goal, we call for a deeper understanding of representation in context.

Adding by Subtracting: How Limited Scope Agreements for Dispute Resolution Representation Can Increase Access to Attorney Services

Given the complexities of the legal system, pro se litigants understandably have difficulties navigating the legal labyrinth, and empirical evidence confirms that unrepresented parties rarely prevail in litigation. In other words, pro se litigants often do not have true “access to justice.” One effort to increase access to justice for those otherwise unable to afford legal services has been in the area of unbundled legal services, or limited scope representation. Traditionally, providers of unbundled services have focused on litigation activities, such as document drafting and hearing representation. These actions, however, simply move a pro se litigant along in the process without ever helping those parties resolve the real issues facing them. This Article brings a new suggestion to the literature dealing with limited scope representation by urging counsel and clients to use unbundled services to settle cases – not prolong them. Through the use of effective client counseling, attorneys and clients should spend funds for limited scope representation on alternative dispute resolution services, including negotiation counseling, negotiation representation, collaborative law, cooperative law, mediation counseling, mediation representation, and arbitration representation. These types of services have the means to truly achieve client interests and solve disputes, thus making them the most economical choice for clients. Attorneys, court systems, and pro bono groups also benefit from the proposal by giving increased work to attorneys, lightening court dockets, and offering manageable pro bono opportunities.

Family Lawyering: Past, Present, and Future

Family law practice in the United States has changed dramatically in the past fifty years due to major social and legal changes. Family courts have had to deal with increased caseloads and they have provided or required a broader range of services including child advocacy, parent education, mediation, child custody evaluations, early neutral evaluation, parenting coordination, and services related to domestic violence. The cost of divorce has increased along with the number and complexity of legal issues in these cases. Family lawyers have responded to the social, legal, and procedural changes with initiatives to promote constructive advocacy including publication of ethical guidelines, provision of unbundled legal services, and development of Collaborative and Cooperative legal practice. Family lawyers now operate as part of interdisciplinary professional workgroups solving family problems in addition to acting as advocates of their clients’ rights and interests. This article concludes with recommendations for family lawyers to deal with these changes. It argues that it is increasingly important for lawyers to be effective client counselors. Lawyers should develop good working relationships with their clients because the clients must manage their own issues on a daily basis. Lawyers should help clients consider the full range of dispute resolution procedures that might be appropriate for their particular cases and make well-informed decisions about how to handle their cases. Because family law issues have many subtle, long-term implications, family lawyers should not only deal with the clients’ current problems, but they should also help clients plan to deal with foreseeable future legal issues. Key Points for the Family Law Community: • Family law practice has changed dramatically in the past fifty years due to many social and legal developments. • Family laws often require courts to make difficult decisions using vague legal standards calling for broader judicial discretion than in the past. • Family courts have had to deal with increased caseloads and have provided or required parties to use a broad range of services. • Family lawyers have developed initiatives to promote more constructive advocacy. • Family lawyers more often operate as part of interdisciplinary professional workgroups. • To be effective, family lawyers must be good client counselors to help clients make good decisions. • Lawyers should help clients make well-informed decisions about dispute resolution procedures that might be appropriate for their particular cases. • Family lawyers should help clients plan to deal with foreseeable future legal issues to resolve disputes and prevent future conflict.

UNBUNDLING THE ETHICAL ISSUES OF PRO BONO ADVOCACY: ARTICULATING THE GOALS OF LIMITED‐SCOPE PRO BONO ADVOCACY FOR LIMITED LEGAL SERVICES PROGRAMS

This article seeks to articulate the practical goal of unbundled legal services for the pro bono family law sector as it applies to limited legal services programs (also known as brief advice clinics), through the use of a goal spectrum, derived from the theoretical goal of access to justice. This article briefly discusses the status of the Indiana Rules of Professional Conduct, as they pertain to the ethics of unbundling. This article then focuses extensively on some practical considerations within the ethical issues of both the scope of representation and attorney competence in order to articulate an appropriate goal for unbundled legal services. Finally, the article concludes that service providers in limited legal services programs should explicitly identify and then perform an essential, discrete service that the client needs to have performed in order to help the client meet his or her ultimate objectives. The service provider and the client could then gauge the success of the limited scope representation based on whether and how well the specific service has been provided.

FORREST MOSTEN'S COLLABORATIVE DIVORCE HANDBOOK: EFFECTIVELY HELPING DIVORCING FAMILIES WITHOUT GOING TO COURT—THE PAST, PRESENT, AND FUTURE OF COLLABORATIVE LAW

Mosten has been an outstanding advocate over many decades for family mediation, unbundled legal services (where lawyers offer discrete advice and assistance to clients, rather than taking carriage of their entire file) and now collaborative divorce. His experience has made him an effective advocate and trainer in these and other innovative areas of dispute resolution practice, and here he brings that wide and deep experience to the relatively new practice area of collaborative divorce. Mosten is clear about his goals for this book, just as he encourages others to be clear about their practice goals and vision. He wishes to share his personal experience of the power of collaborative divorce in order to inspire those already working in this area—as well as to motivate those who are considering whether to expand their practice to include collaborative divorce. The book is designed—and works best—as a comprehensive manual which walks a legal practitioner through the process of collaborative divorce. Each chapter is devoted to a different phase of the process and includes valuable checklists and “how to” information which only an experienced practitioner can provide. Mosten draws on his accumulated wisdom of many years of working through conflicts with clients both inside and outside a court setting—and it shows. For example, he suggests the ”court field trip” for a prospective divorce client—sending them down to the local family court to see for themselves how things work at the courthouse. Mosten’s experience as a practitioner is also evident in his description of especially challenging aspects of the collaborative process—for example, when the parties appear to be at impasse (Mosten suggests a “joint proposal process”), or where there is a dispute over the disclosure of necessary information (which is undertaken voluntarily in a collaborative model)—and suggests how to face these situations with effective tools and techniques. Mosten first places this practical coaching within a conceptual context. The first chapter of the book is devoted to what he describes as the “paradigm shift” that collaborative divorce implies for lawyers. Mosten’s focus here is on the ways in which the approach of collaborative practice changes the underlying power dynamic between lawyer and client, with the client taking more responsibility for

DISCRETE TASK REPRESENTATION, ETHICS, AND THE BIG PICTURE

This paper discusses the long term implications of the “unbundled legal services movement” with particular focus on overcoming perceived “ethical” barriers to unbundling and on the possibility of laying a foundation for the creation of a right to counsel in civil cases for those who cannot afford a lawyer.

TO BUNDLE OR UNBUNDLE? THAT IS THE QUESTION

A substantial number of parties either represent themselves or are partially represented in family law matters because they are unable to afford traditional full service representation. As this number continues to climb courts are taking a proactive approach in servicing self‐represented litigants through self help centers. The following is a judge's perspective on how unbundled legal services assist the self represented and the courts as well as answers to ethical concerns should they arise.

LITERACY REQUIREMENTS OF COURT DOCUMENTS: AN UNDER-EXPLORED BARRIER TO ACCESS TO JUSTICE

We know that members of the public find court forms complex. Less is known, however, about what in particular makes these documents difficult for non-legally trained people to complete.
 The study described in this article seeks to fill this information gap by deploying a “functional literacy” framework to evaluate court form complexity. In contrast to more traditional conceptions of literacy, “functional literacy” shifts the focus away from the ability to read and towards the ability of individuals to meet task demands. Under this framework, an individual is assigned a literacy level by virtue of the complexity of the tasks that he or she is able to complete. As a result, the framework focuses as much on tasks (and associated documents) as it does on the capacity of the individual. Four different Ontario forms needed to initiate three different types of legal proceedings were examined. The results of the study are described in significant detail in the article. Some of the identified sources of challenge include requirements to: generate information that requires expert legal knowledge; infer the meaning of technical legal terms; and move between multiple information sources (including, for example, searching on a website to find a correct court address). Another set of identified challenges was reflected in “distractors” contained in the court forms that risked confusing the reader, such as broad requests for information or the use of unclear terms. Although the associated court guides provided some guidance on the above types of issues, we found that such guidance was often incomplete and also potentially difficult to access given the overall complexity of the guides themselves. 
 Although proposing comprehensive solutions was beyond the scope of this study, the article concludes with a preliminary discussion of possible solutions, including form redesign, the use of dynamic electronic forms and the provision of unbundled legal services.