Discrete Task Representation A/k/a Unbundled Legal Services

• Jurisdiction: Colorado,United States
• Citation: Vol. 29 No. 1 Pg. 5
• Pages: 5
• Publication year: 2000

29 Colo.Law. 5 Colorado Lawyer 2000.

2000, January, Pg. 5. Discrete Task Representation a/k/a Unbundled Legal Services

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Vol. 29, No. 1, Pg. 5

The Colorado Lawyer
January 2000
Vol. 29, No. 1 [Page 5]

Articles

Discrete Task Representation a/k/a Unbundled Legal Services
by Raymond P. Micklewright

A growing number of people choose not to hire an attorney when they have a legal problem. Some cannot afford to hire an attorney. Some prefer to maintain control over their legal matters because of concern that lawyers complicate the matter or make it unduly adversarial and unnecessarily expensive Whatever the reason, more and more people are choosing to represent themselves when they go to the court

Effective July 1, 1999, changes to the Colorado Rules of Professional Conduct ("Colo.RPC") and the Colorado Rules of Civil Procedure ("C.R.C.P.") allow attorneys to assist pro se litigants in civil state court matters without such assistance constituting an entry of appearance.1 Permissible tasks include drafting pleadings and papers to be filed with the court by the pro se litigant Essentially, the amendments to the rules allow a client to hire an attorney to perform discrete tasks agreed on by attorney and client without such assistance constituting the lawyer’s entry of appearance in the matter.

The Colorado Supreme Court enacted these rules after extensive feedback from and consideration by the Colorado Bar Association’s Ethics Committee, Civil Rules Committee, judges, and practitioners.

UNBUNDLED LEGAL SERVICES

Our society is governed by the rule of law. An unfortunate by-product of such a society is that rights and responsibilities are increasingly defined in language more understandable to lawyers than to laypersons. Increasingly, laypersons need legal assistance in interpreting and understanding the rules and regulations governing personal and business relationships. However, as our society has become more legalistic, the public’s access to free or affordable legal assistance has decreased substantially.

For instance, the Legal Services Corporation ("LSC"), providing legal services to the nation’s poor, turns away thousands of potential clients annually because of cutbacks in funding. In fact, in 1993, only 1.5 million of the fifty million potentially eligible clients received services.2 In 1994, 60 percent of eligible clients seeking assistance were turned away.3 In 1995, the 104th Congress failed in an attempt to abolish the LSC program completely, but did slash its annual budget from $415 million to $283 million.4

In concert with financial cutbacks, Congress has limited the kinds of services LSC programs can provide to clients. Restrictions implemented in 1996 prohibit lobbying and rulemaking,5 class actions,6 and challenges to welfare reform.7 As a result, LSC programs now have limited ability to address systemic injustices and inequities.8

Colorado legal services programs have been directly impacted by the cutbacks in federal funding, losing approximately $1.2 million in annual funding. Attempts to replenish the loss by increasing court filing and attorney registration fees have uniformly failed; so have attempts at requiring attorneys to provide pro bono legal services.9

Low- and moderate-income people have all but been ignored. Unlike the poor, low- and moderate-income people have no formal, subsidized legal services program to look to for assistance. Nevertheless, many people with low and moderate incomes cannot afford the rates typically charged by private attorneys.10 A 1994 American Bar Association ("ABA") study of the legal needs of low- and moderate-income households discovered that the average American household had one new legal problem in 1992. Of those households reporting legal needs, the mean number was approximately two problems per moderate-income household.11 Because of the high price of legal assistance, however, many low- and moderate-income individuals confronted with those legal problems either did nothing about them or attempted to resolve them without the assistance of an attorney.

More often than ever before, lawyers are finding that the public in general and, more important, their clients cannot afford the legal services they need. Because of the high cost of legal services in litigation matters, those confronted with a lawsuit12 are increasingly opting to represent themselves in court, rather than retain the services of a lawyer. While these pro se litigants may save attorney fees, they can and often do give away valuable legal rights without ever knowing it.

The Public’s Access To Legal Assistance

Discrete task representation or unbundled legal services has long been promoted as a viable method of increasing the public’s access to legal services.13 Typically, in "unbundled" representation, the attorney is retained by, or available to, an individual to give specific or limited-scope legal advice at various stages of a legal matter. For instance, unbundled services might include the following:14

Advice: The client can purchase a single consultation or ongoing consultation throughout the matter as the lawyer and client determine is necessary.

Research: The client can obtain legal research on a single issue or a variety of issues, either as a single project or over the course of the matter.

Drafting: The lawyer will draft correspondence or other documents for the client to sign and deliver, or merely review and advise about documents prepared by the client.

Negotiations: The lawyer will coach the client in negotiation strategies and techniques, or the lawyer might negotiate for the client.

In non-litigation matters, the concept of unbundling is nothing new. In transactional matters, it is not unusual for the client to decide whether to act, whether a professional is required, and, if so, what type of professional should be retained. If a lawyer is needed, the client has a choice as to whether the diagnosing lawyer or another lawyer should do the required legal work. If a lawyer is retained, he or she may be expected to identify problems, but not necessarily do all the routine work to resolve them.

However, in litigation matters, lawyers historically have provided full service representation because of the complexity of the procedural rules, as well as the rules of evidence, at trial. Until the last decade or so, attorneys represented most litigants in court.15 Attorneys prepared the pleadings and papers, advised clients about the consequences and implications of the court proceedings, settled cases when appropriate, and, if the case proceeded to trial, represented the litigants in court.16 For a variety of reasons, not the least of which is cost, that method of delivering legal services is out of reach for much of the public. Accordingly, allowing attorneys to provide discrete task legal services to their clients in litigation matters at least ensures that clients receive some legal assistance where they might otherwise go without.

The Colorado Bar Association ("CBA") Ethics Committee recognized the need for unbundled legal services in Formal Opinion 101, "Unbundled Legal Services,"17 and concluded that unbundled legal services in both litigation and non-litigation matters is ethically permissible. Nevertheless, despite the financial attractiveness and ethical propriety of unbundled legal services, lawyers and judges have been hesitant to embrace the practice. This is primarily due to concerns about how such representation fits within the traditional concept of the adversarial system and the role of the lawyer.18 Furthermore, as more fully discussed below, because of the divergence of attitudes between state and federal courts in Colorado regarding the ethical propriety of unbundling legal services in litigation matters, lawyers have legitimate concerns about vulnerability to malpractice claims and disciplinary complaints.

With the new amendments to the Colorado Rules of Professional Conduct and the Colorado Rules of Civil Procedure, the Colorado Supreme Court has cleared away some, if not all, of the ambiguity surrounding discrete task representation, particularly in state court civil litigation matters. It now seems clear that, in addition to providing limited advice, research, drafting, and negotiation for clients, a lawyer may provide limited assistance to a client in a civil lawsuit, including pretrial case management, coaching, and even assistance in drafting pleadings and papers that the client will sign and file pro se.

In other words, the new rules provide that a lawyer’s role may be limited, by agreement with the client, to that of a legal consultant who advises or assists the client in the litigation only as the client requests. These limited engagements may mean that investigations, discovery, deadlines, court appearances, calendaring, filing of papers, and other responsibilities normally undertaken by trial counsel may become the client’s responsibility by agreement. For many clients, these limited engagements make a lawyer’s services affordable and available. The availability of limited-scope legal services also can eliminate some of the injustices that often befall pro se litigants because of their unfamiliarity with the myriad procedural and evidentiary rules of litigation.

PROFESSIONAL CONSIDERATIONS

From a professional standpoint, discrete task representation or unbundled legal services is not significantly different from the delivery of legal services through the "traditional" method. In evaluating the viability of any representation, even limited-scope representation, a lawyer should ask two questions: (1) Is the conduct legally permissible? and...