How Judges Can Encourage Unbundling, 0419 COBJ, Vol. 48, No. 4 Pg. 10
| Author | BY DANIEL M. TAUBMAN AND ADAM J. ESPINOSA |
| Position | Vol. 48, 4 [Page 10] |
JUDGES' CORNER
BY DANIEL M. TAUBMAN AND ADAM J. ESPINOSA
According to the Institute for the Advancement of the American Legal System (IAALS), unbundling of legal services "is a service delivery model that holds promise for the growing number of self-represented litigants."[1] To realize this promise, "[t]he support of the courts is absolutely essential in order for unbundling to take hold."2 This article provides a brief overview of what constitutes unbundling and the applicable procedural and ethical rules. It also discusses how Colorado judges can play a leadership role in encouraging lawyers and pro se litigants to use unbundling.
What is Unbundling?
Unbundling of legal services—also known as limited scope representation, limited representation, discrete task representation, or some derivative of these words—occurs when an attorney and a client agree that the attorney will perform some, but not all, the legal tasks in a legal matter. It is an alternative to traditional representation, which includes handling all legal tasks for the client.3Unbundling may include drafting documents and pleadings (sometimes referred to as ghostwriting), appearing in a limited role in court, and providing legal advice and counsel. Unbundling is permitted under ethical and procedural rules in state and federal courts in Colorado.
The benefits of unbundling are twofold. First, unbundling promotes access to justice. Approximately 273,000 Coloradans went unrepresented in civil, domestic, and county court cases in 2017.4When limited representation is available to clients, the judicial system becomes more accessible to all. Second, the more lawyers use unbundling, the more prepared litigants become, reducing the burden on court staff and conserving judicial resources. Judges around the state who attended our CLE presentations on unbundling during the past few years uniformly agree that having a litigant represented in court for part of a case is preferable to litigants proceeding without a lawyer for the entire case.5Similarly, when a lawyer provides substantial assistance to an otherwise pro se litigant by ghostwriting a pleading or brief, the case is likely to proceed more smoothly. Finally, when a lawyer helps a pro se litigant by coaching him or her before a court appearance or answering his or her questions from the lawyer's office during a scheduled break at a hearing, the hearing is likely to proceed more efficiently.
The Rules
The following rules set forth the ethical and procedural rules for unbundling legal services in die Colorado state trial courts: Colo. RPC 1.2(c), C.R.C.P. 11(b) and 311(b), and C.R.C.P. 121, § 1-1(5). In Colorado's appellate courts, Colo. RPC 1.2(c) and C.A.R. 5(e) set forth the applicable unbundling rules. Local Attorney Rules 2 and 5 for the U.S. District Court of Colorado set forth the rules for engaging in unbundling in die federal trial court in Colorado. While the procedural rules authorizing unbundling in each forum focus on civil practice, Colo. RPC 1.2(c) does not prohibit unbundling legal services in criminal practice. A careful review of these rules and how they work together is essential for practitioners and courts.
State Trial Courts
Colo. RPC 1.2(c) allows a lawyer to limit the scope or objectives, or both, of the representation if the limitation is reasonable and the client gives informed consent. It is important that the representation be reasonable under die circumstances. For example, an attorney could represent a client in a temporary orders hearing in a family law matter, but not represent die client in die permanent orders hearing or with the remaining legal tasks in the matter. It is also important that die client gives "informed consent" to limit the scope or objectives of representation.6 Informed consent requires die attorney to counsel die client on die advantages and disadvantages of the limited representation versus full or traditional representation. Representation under Colo. RPC 1.2(c) commonly includes performing discrete tasks on behalf o f the client, such as counseling the client on the legal issue, reviewing documents, drafting correspondence, and negotiating.7
C.R.C.P. 11(b) and the corresponding county court rule 311(b) permit unbundling of legal services in Colorado state trial courts by allowing an attorney to draft pleadings or other court documents on behalf of a party without entering an appearance. This...
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