Legal needs of the public in the future.

• Author: Walker, Vernetta L.

As the legal community braces to move into the year 2000 and beyond, one message continues to ring loud and clear: More and more Floridians are becoming disillusioned with the legal system and often feel the system is not there to help them or is not accessible. Providing access to the courts is a complex problem that does not have a simple solution. One approach is public education about the legal system and lawyers' roles within that system. Equally important, though, is changing lawyers' views and roles, so they can adequately meet be needs of the vast majority: low and moderate income households in Florida, which combined include about 85 percent of the household population in Florida.(1)

A recent study conducted by Temple University revealed that 30 percent of all low income households in Florida had civil legal needs during the one year reference period used for the study, and 38 percent of moderate income households reported legal needs for that same period.(2) The highest prevalence of legal needs for low income households occurred in the area of housing and real property, followed by personal finance and consumer, community and regional, family and domestic, employment, health care related, and personal/economic injury legal needs.(3) Moderate income households ranked personal finance and consumer needs first, followed by housing and real propertY, employment, wills and estates, community and regional, then personal/ economic injury.(4)

Less than one third of the legal problems reported were addressed by the legal/judicial system. The most frequently cited barriers were (low income percentage/moderate income percentage): cost concerns (24 percent/11 percent); did not think it was really a legal problem (18 percent/18 percent); did not think the legal system would help (17 percent/15 percent); left the situation rather than confront it (12 percent/ 8 percent); and handled it on their own (5 percent/11 percent).(5) Altogether, only 19 percent of low income and 25 percent of moderate income legal needs were brought to a lawyer.(6)

A 1994 ABA study points out that both low and moderate income households were more likely to be satisfied with the ultimate resolution of a matter if it was brought to the civil justice system than if it was not.(7) Also, the overwhelming majority of those who utilized the services of a lawyer gave especially high ratings for lawyer performance.(8) Unfortunately, the majority of people are going without legal assistance, and this will continue to be the trend, unless lawyers and the legal system are willing to make the adjustments necessary to provide equal access. The following are some possible means of providing more affordable access to the legal system.

Unbundled Legal Services(9)

Generally, we think of legal services in terms of feast or famine, full service or nothing. Full service usually includes legal advice, fact investigation, legal research, discovery, drafting of correspondence and pleadings, negotiation, and representation at hearings and trial.(10) An alternative to this approach is unbundling. In other words, the client can select a portion of the full package and contract with the lawyer accordingly.

With unbundled legal services the client retains the lawyer for only those services desired. The type and depth of services selected will depend on a number of factors, including the extent and accuracy of information given to the client, the personality of the client, the complexity of the task, and the costs and available resources. After consulting with the attorney, the client may select specific issues for the attorney to research, or request additional consultation throughout the case. The lawyer may ghostwrite letters and court pleadings, or just review and comment on what the client has prepared. Another option is for the lawyer to coach the client on mediating and negotiating with opposing parties and proceeding pro se.(11) Alternatively, the client may desire to convert to full representation and have the lawyer enter an appearance, depending on how the case is proceeding.

The key to success in this type of lawyer/client relationship is communication. If the client wants to maintain control of case strategy and implementation, the client must be educated about the advantages and disadvantages of unbundled legal services, as opposed to full representation. The services to be provided by the lawyer must be clearly delineated and an understanding reached about which services the client expects to do without the lawyer. A written agreement(12) can serve this purpose and provide some protection for the lawyer in the event a dispute arises later from a disgruntled client.

A major obstacle to offering unbundled services is the dilemma of possible ethical and civil liability exposure for malpractice, which is not eliminated by even the most extensive client agreement. Attorney Forrest Mosten, author of several articles on unbundling, makes clear that the lawyer's responsibilities do not change whether it is traditional full service or discrete task representation.(13) Lawyers who offer unbundled legal services do not have a safe harbor for giving incorrect or incomplete advice due to the limited scope of employment. They still have to screen for conflicts, cannot advise the client to do anything unethical,,and must maintain confidentiality. The lawyer may, however, turn down representation if he or she feels the matter is too complex to possibly prepare the client to handle on his or her own. The lawyer retains independent judgment about how many times the client can come back and whether it is too late to step into a case.

To encourage unbundled legal services, the Rules of Professional Conduct would have to be examined to eliminate existing barriers.(14) It even has been suggested that statutory immunity be granted with respect to tasks not specifically undertaken by the lawyer.(15) The argument is simple: the public both demands and deserves affordable alternatives for resolving legal problems. Many clients are capable of handling discrete tasks and desire to maintain some control over their legal affairs. Allowing such an arrangement will better enable the...