Unbundling

1. Unbundling A webinar with M. Sue Talia

2. Unbundling • What it is (and isn’t) • Ethical and Malpractice issues • Training • Resources • How to obtain buy-in from courts and attorneys • Q & A

3. Quiz • In your struggle to address the challenges posed by self represented litigants, how important would it be to provide an incentive to the private bar to assist in their representation? • Critically important • Very important • Sort of important • Not important • No, thanks, we’ve got it covered

4. What it isn’t • Limited liability • Second rate service • Lowered standard of care • Just for poor people • A threat to lawyers offering full service representation • New • Going to go away

5. What it is • An attorney/client relationship • Limited scope • Coaching • Ghostwriting • Document assistance • Research and strategy • Limited court appearances • A marketing opportunity and potential profit center for lawyers

6. Where it works best • High volume of pro se litigants in courts designed for lawyers • Litigants who are individuals (not entities) • Litigants without significant language or mental health barriers • Legal issues which are not extremely technical • Litigants who take a realistic approach to their legal matter

7. Quiz • What percentage of family law litigants appear in court without lawyers? • Under 50% • Between 50% and 60% • Between 60% and 70% • Between 70% and 80% • More than 80%

8. Development of the Model • Family law has been the primary focus • Consumer demand has been the driving force • Client satisfaction has further reinforced the practice • Improved calendar efficiency has brought the courts along • Expansion of the model to other fields of law

9. The Continuum • Advice and counsel • Reviewing client-drafted materials • Ghostwriting and document assistance • Role playing, coaching, and strategy • Negotiation • Limited court appearances

10. Breaking it Down by Task • By far the most common • The attorney does the technical or more complex parts • The attorney coaches the client on more routine tasks • Examples of how it might work

11. Breaking it Down by Issue • Attorney does all tasks related to a complicated issue • Client does all tasks related to the simple issue • Most unbundling arrangements involving a court appearance are issue based rather than task based • Exception: one-time appearance to argue a single motion

12. Ethical Rules • Limitations on scope must be informed and in writing • Limitations on scope must be reasonable under the circumstances • Changes in scope must be documented • Attorneys must advise of the existence of related issues even if not asked

13. Ethics Opinions • Colorado 101 • LACBA 502 • Ethics Primer • Links to all on selfhelpsupport.org

14. Risk Management • Clear delineation of the nature of the scope • Rigid adherence to the limitation • Redefining the box before stepping outside • Good communication tools • Use of materials office procedures and forms designed with limited scope in mind

15. Malpractice Considerations • Few cases, although the practice is widespread among attorneys serving lower and middle income individuals • Most problems result from breakdowns in communication between attorney and client • Expanding the scope without obtaining a new written limitation • Failure to advise on related issues

16. Quiz • Among the following, what is the most common cause of the breakdown of the attorney/client relationship? • Lawyers charge excessive fees • Lawyers fail to communicate effectively with their clients • Lawyers abandon their clients

17. California Family Law Risk Management Materials • Available as a link on the unbundling section of selfhelpsupport.org library • Comprehensive • Turn key • Cost effective • Simple to use • Multiple uses for each checklist

18. Poster Child • Good communication skills • Able to make decisions and accept responsibility for them • Desire to remain in control of their legal matter • Access to the web, self help centers, or other resources which they can use to augment the attorney’s assistance

19. Poster Child • Educated (but not necessarily) • Tech savvy (but not necessarily) • What about DV?

20. Making the analysis • Limitations on scope must be tailored • By issue • By litigant • By court • By task

21. Benefits • To litigants • To courts • To attorneys • To society

22. Training • Quality training essential • Problems are generally practical rather than ethical • Follow up, mentors, and study groups • pli.edu – free three hour training on the web • Introduction to limited scope • Designed to be tailored to other states

23. Areas Which are Ripe • Landlord/tenant • Bankruptcy • Small civil • Small claims assistance • Insurance coverage issues • Consumer law

24. Other Resources • Risk Management Materials being tailored to other areas of law • Ripe for tailoring to other states as well • Many listed on selfhelpsupport.org • Unbundledlaw.org

25. Obtaining Buy In from Courts • Judicial education • High volume pro se litigants in courts designed for attorneys • Judges see intelligible pleadings and well drafted, enforceable orders • Use of attorney expertise where it is needed most is of great benefit to judges

26. Obtaining Buy In from Courts • Education required to deter courts from expanding scope • Educate judges on the benefits to them in the form of more efficient court calendars and savings in judicial and staff time • Fewer documents rejected for errors in form • Fewer continuances for improper service • More seamless flow of litigation

27. Obtaining Buy In from Attorneys • Not a threat to the traditional bar • Use the statistics in your state • Focus on fields with high volumes of pro se litigants • Target the segments of the bar which already serve these populations • Treat it as a marketing opportunity for lawyers wanting to grow their practice

28. Obtaining Buy In from Attorneys • If the top brass aren’t receptive, don’t give up • Go to the grass roots • Remove rule and ethics impediments where they still exist • Find a local champion who can talk to the stakeholders

29. Finding Support In the Bar • Access to Justice groups • Pro Bono recruiters • Legal aid programs • Self Help center staff • Rural or inner city lawyers • Enlist judges with heavy pro se calendars • Stress the marketing opportunities

30. Support Attorneys Willing to Try • Use and tailor risk management materials, forms and procedures which have been proven to work in other states • Make it as risk-free as possible • Make it as easy as possible • Offer free or low cost training wherever there is a need and people are willing to attend

31. Support Attorneys Willing to Try • Organize list serves, support groups, or other sources of mentoring and a place to discuss solutions to common problems • Create and tailor Best Practices • Create and share marketing tools • Keep the standard HIGH and provide the materials to make it hard to mess up • Reinforce client satisfaction, attorney satisfaction, and profitability

32. Questions to Ask • What do you see as the greatest impediments in your state? • Where is the greatest need in your state? • Who represents the groups which will most likely benefit? • What groups need to be neutralized or bypassed? • Who is indispensable and must buy in?

33. Where to Find a Roadmap • My article, “Roadmap to a Successful Unbundling Program” posted on the unbundling section of selfhelpsupport.org • Details what factors, conditions and players are • Indispensable • Desirable but not indispensable • Helpful if willing • How to sell each of them

34. Conclusion • It’s a question of “how?” and “when?” not “whether?” • Look at the statistics • Huge population base which does not qualify for legal aid and is currently not served by the legal profession • If we don’t serve them, someone less competent will

35. Q & A