Utah Bar Journal

What is “Unbundled” Law?
The terms “unbundled legal services,” “limited scope legal assistance,” and “a la carte legal services” all mean the same thing: that a lawyer assists clients with only those legal services that the clients want and specifically engage the lawyer to do. This might sound obvious, but the traditional model for providing legal services is a different picture. In that customary image, the client hires the attorney to handle an entire matter. The client remains involved, but may have very little meaningful input or involvement in his or her case. Unbundled services contemplate that the client and lawyer – together – select the services the office will provide.

When I first heard of this notion, I didn’t much like it. I graduated from law school in 1982, when we still used the term “Shepardize.” A few years ago, I read about Forest Mosten’s unbundled practice in California and was taken aback. I contemplated the potential aspects of an unbundled legal practice. I foresaw a nightmarish oral argument, before an impatient court, reliant upon an incoherent memorandum written by a client. No, no, no. But – there was that desire to help only where the client wanted or could afford.

I’ve had seven years of family, criminal, and civil law litigation experience, including founding and operating a non-profit legal services firm in another jurisdiction. I’ve also had four-plus years of disability law experience in Utah. I opened a private practice doing unbundled family law in Salt Lake in June of 2007.

Who Needs Unbundled Legal Services?
Groups whom an unbundled practice could benefit are those who are above income for legal aid but who are unable to come up with a big retainer or pay the expense of full-service representation. In fact, this may describe most of the middle class (I know it describes me). There exists an enormous number of bright client/litigants who have the wherewithal to draft a Petition to Modify Child Support utilizing the Online Client Assistance Program (OCAP), but who may want limited procedural advice on that petition – or advice on attendant pleadings, next steps, or coaching for an upcoming mediation. Or, just to be told that they’re doing it right.

Pro se litigants are another obvious group that will benefit from unbundled services. It’s the cost of traditional full-service representation that is not affordable for many clients. Clients frequently pay lawyers an adequate amount to obtain the entire limited representation they need, but that amount is used as a deposit for full-service legal representation. When the client can’t pay a later installment of the full-service fee, the attorney discontinues the legal work. This rarely ends well. However, many pro se litigants have enough available income to pay for the limited representation they truly need.

Many litigants visit the Legal Aid and Family Law clinics housed in the Matheson Courthouse. Some are completely capable of handling their own case but have the occasional question or discrete request for specific guidance. Others are comfortable completing their own pleadings, using a service such as the OCAP, but may want an attorney to review those pleadings prior to filing – or step in as needed, when needed. Others want more constant involvement. Unbundled representation is tailored to the litigants’ specific needs.

Another group that will benefit greatly from unbundled legal representation is the judiciary. In the great majority of family law cases filed in the Third District, one or both of the parties is appearing pro se. This corresponds to a lot of explaining by the patient clerks – and commissioners and judges. No matter what level of professional assistance a client needs, judicial expediency will be improved if pro se litigants possess the relevant information assistance to make knowledgeable and informed procedural decisions and presentations to the court.

Unbundled representation will help the courts to manage their dockets more efficiently and fairly. It can enhance the quality of pleadings, narrow and focus the issues, and lead to outcomes that are more fair and just.

Opposing counsel will also benefit from an unbundled, limited-scope approach as well. There are many aspects to litigation that can be easily navigated with a quick call to opposing counsel. Many pro se litigants are unaware that they can, and may even be expected to, speak directly with opposing counsel. Worse (and more likely) they may feel ill-equipped to deal directly with them. Having an attorney “on call” to represent a party in a limited capacity, even on procedural aspects only, will enable the litigant to focus on the substantive aspects of her case, and hasten resolution.

What are the Parameters of Unbundled Representation?
Rule 75 of the Utah Rules of Civil Procedure provide the procedural basis for unbundled representation. This Rule states:

Rule 75. Limited appearance. (a) An attorney acting pursuant to an agreement with a party for limited representation that complies with the Utah Rules of Professional Conduct may enter an appearance limited to one or more of the following purposes:

(a)(1) filing a pleading or other paper;

(a)(2) acting as counsel for a specific motion;

(a)(3) acting as counsel for a specific discovery procedure;

(a)(4) acting as counsel for a specific hearing, including a trial, pretrial conference, or an alternative dispute resolution proceeding; or

(a)(5) any other purpose with leave of the court.

(b) Before commencement of the limited appearance the attorney shall file a Notice of Limited Appearance signed by the attorney and the party. The Notice shall specifically describe the purpose and scope of the appearance and state that the party remains responsible for all matters not specifically described in the Notice. The clerk shall enter on the docket the attorney’s name and a brief statement of the limited appearance. The Notice of Limited Appearance and all actions taken pursuant to it are subject to Rule 11.

(c) Any party may move to clarify the description of the purpose and scope of the limited appearance.

(d) A party on whose behalf an attorney enters a limited appearance remains responsible for all matters not specifically described in the Notice.

Utah R. Civ. P. 75.

That the Utah State Courts endorse some level of limited legal representation is illustrated by its Self-Help Resources page, which notes that “limited scope legal representation” or “unbundled services” are alternative ways to get legal help. Indeed, the website provides lists of attorneys in the Second, Fourth, and Fifth Districts who offer limited legal services.

Utah State Bar Ethics Advisory Opinion Committee Opinion No. 08-01 also addresses whether an attorney may provide legal assistance (including the preparation of written documents) to pro se litigants without disclosing the nature or extent of such assistance to opposing counsel or party. In so doing, it offered an inclusive, considered opinion and history of limited scope representation. It also analyzed the potential difference in the ways the Utah State Courts and the Tenth Circuit may treat some aspects of limited scope representation.

It also is noteworthy that this Main Advisory Opinion sparked a Dissenting Opinion. Both are well-reasoned and I would recommend them to any practitioner considering unbundled law. The Opinion describes the “global” evolution of the traditional legal representation model with an informed and informal client base, which has resulted in a more responsive, timely, and precise delivery of legal services. At the same time, the opinion acknowledges that difficulties in that delivery may arise. Not surprisingly, one solution may be more communication between litigants, limited scope counsel, and opposing counsel.

Logistics: the Devil is in the Details
This is the hard part. The boundaries of representation must be clearly understood by both the attorney and the client. For instance, a client may draft and file a motion, but then hire me to represent him, via a limited appearance, at the motion hearing. Leaving aside substantive issues for the moment, let’s say I represent him at that hearing, prevail, and the court orders me to prepare the order. Is that preparation included in the client’s understanding of “representation at a hearing”? Or is the client responsible for drafting the order? Is the very common “back and forth” with opposing counsel to achieve an approved order also included? Client agreements must be particularly distinct.

Client Agreements should also be easily understandable. It serves no one – least of all the attorney – if the agreements are a muddle of legalese. If we are to encourage an unbundled practice, we must also encourage a genuine understanding of our agreements by both clients and attorneys. Eschew obfuscation.

I have run into another issue that is potentially concerning. Assume I am hired in a limited scope capacity. The initial pleadings have been filed, and the next step is mediation. The client wants to attend mediation without me. However, the opposing party will have counsel present. Opposing counsel is wary of going into mediation with a pro se opposing party whom he knows has counsel – in whatever limited role.

When opposing counsel calls me, a good response might be to discuss the precise parameters of my limited representation. While this may not alleviate counsel’s concern, communication is certainly a positive step towards an understanding of, and familiarity with, the notions of unbundled representation.

Utah State Bar Ethics Advisory Opinion Committee Opinion No. 08-01 also addressed the communication issues attendant in the above scenario.

Another aspect of limited representation that warrants comment is Rule 4.2, which prohibits communicating with persons a lawyer “knows” to be represented “in the matter” without that lawyer’s permission. When the lawyer has entered a limited appearance in court, Utah Rule of Civil Procedure Rule 75 governs and explicitly provides that “the party remains responsible for all matters not specifically described in the Notice” of limited appearance. When there is no appearance in the court, the matter is less clear.

Why One Would Want to be Unbundled in Utah, Even in Winter
Cost: Limited scope representation limits the huge expenses of representation. Obtaining records, files from the Court, and performing other “legwork” are a few tasks that clients can do themselves. The client pays only for those services the client needs or can afford, and hires the attorney to perform.

Empowerment: Unbundled legal services empower clients. They bring a higher level of client understanding, personal investment, and ownership in outcomes. They can result in improved compliance with agreements and orders. They help to “demystify” the law and the daunting legal system. Oftentimes the litigant has an excellent grasp of the substantive issues, but doesn’t know how to go about bringing the matter before the court procedurally to obtain relief. Unbundling can bring those procedural aspects of the law into focus and provide crucial prospective to the litigant.

However, unbundled representation is not for every litigant. I tried at first to do exclusively unbundled work – thinking that I would empower and educate clients even if I had to push them off the cliff – but I soon learned that an unbundled approach is not always appropriate. I respect that reality and now try to assess the appropriate approach for a specific client.

Coordinated Solutions: Other factors fueling demand for limited scope assistance include the loss of the middle class, the increase in consumerism, the self-help ethic (reinforced by forms available on OCAP and the Internet), and disaffection with the excesses and high cost of the traditional adversarial legal system.

Conclusion
A shift in the paradigm of providing legal services is occurring. I urge Utah Bar members to think sideways, and inclusively, about the interactions between litigants, lawyers, and the courts. Yes, this can be time consuming and foreign. It’s innovative and unusual and may be out of our comfort zone. But remember – Bertrand Russell said, “In all affairs it’s a healthy thing now and then to hang a question mark on the things you have long taken for granted.”