Opinions of the General Counsel, 1120 ALBJ, Vol. 81 No. 6 Pg. 454 (November, 2020)

PositionVol. 81 6 Pg. 454

OPINIONS OF THE GENERAL COUNSEL

No. Vol. 81 No. 6 Pg. 454

Alabama Bar Lawyer

November, 2020

Roman A. Shaul

The Unbundling of Legal Services and "Ghostwriting"

QUESTION:

Maya lawyer participate in the "un-bundling" of legal services? Must a lawyer who only "ghostwrites" a pleading or complaint on behalf of a prose litigant reveal his involvement to the court?

ANSWER:

Rule 1.2, Ala. R. Prof. C, allows a lawyer to limit the scope of his representation and, thereby, the services that he performs for his client. As such, a lawyer may participate in the "un-bundling" of legal services. Ordinarily, a lawyer is not required to disclose to the court that the lawyer has drafted a pleading or other legal document on behalf of a pro se litigant provided the following conditions are met: 1) The lawyer and client have entered into a valid limited scope of representation agreement consistent with this opinion and the drafting of legal documents on behalf of the pro se litigant is intended to be limited in nature and quantity.

2) The issue of the lawyer's involvement in the matter is not material to the litigation.

3) The lawyer is not required to disclose his involvement to the court by law or court rule.

DISCUSSION

In recent years, the practice of offering clients "unbundled" legal services has grown in popularity. "Unbundled" legal services are often referred to as "a la carte" legal services or "discrete task representation" and involve a lawyer providing a client with specific and limited services rather than the more traditional method of providing the client full representation in a legal matter. The unbundling of legal services falls into three general categories: consultation and advice; limited representation in court; and document preparation. For example, the client and lawyer may agree that the lawyer will be available for consultation on an hourly basis regarding a specific matter, but the lawyer will not undertake to represent the client in the matter or file a notice of appearance in the case. Sometimes, the lawyer may agree to make a limited appearance on behalf of the client at a hearing, but will not represent the client in the actual trial of the matter. Most often, however, the lawyer agrees to prepare an initial complaint for a client that the client will then file pro se. In that instance, the lawyer's drafting of the complaint is most often referred to as "ghostwriting."

The rationale behind offering clients the option of unbundled legal services is two-fold. First, the unbundling of legal services is viewed as a means of helping clients control the cost of litigation by allowing the client to pick and choose which services the lawyer will actually provide. Advocates of the unbundling of legal service contend that such limited representation provides lower- and middle-income individuals greater access to legal assistance than they would normally be able to afford. Advocates argue that many such individuals do not have the financial means to employ a lawyer under the more traditional full representation approach. Another proposed benefit is that the unbundling of legal services allows a lawyer to provide limited assistance to individuals when the lawyer may not have the time or resources to undertake full representation.

The offering of unbundled legal services is implicitly authorized under Rule 1.2(c), Ala. R. Prof. C, which provides as follows: RULE 1.2 SCOPE OF REPRESENTATION

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(c) A lawyer may limit the objectives of the representation if the client consents...

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