Unbundled legal services: untying the bundle in New York State.

• Author: Fisher-Brandveen, Fern

Access to the legal system is an inherent right of citizenship, yet far too many New Yorkers are currently denied this right because they lack economic resources.

--Chief Judge Judith S. Kaye (1)

INTRODUCTION

The unmet legal needs of the poor and middle-class in New York State and throughout the country are well documented. (2) Nearly three-fourths of low-income Americans and two-thirds of moderate-income Americans with identified legal needs either ignore their problem or try to resolve it without assistance. (3) For many of these individuals, timely legal help could prevent unemployment, eviction, or the failure of a small business. Despite this fact, legal services budgets continue to be cut and thousands of potential clients are turned away each year. (4) This occurs in New York State, which has the seventh highest poverty rate in the United States. (5) Legal services offices cannot meet the need of the indigent, and a sizable middle-income population cannot afford private attorneys. (6)

A legal right is meaningless without access to the judicial system. Civil justice leaders, therefore, have looked for new ways to deliver legal services including "unbundling."

Unbundled legal services is a practice in which the lawyer and client agree that the lawyer will provide some, but not all, of the work involved in traditional full service representation. Clients choose the legal assistance according to their needs and perform the remaining tasks on their own. Unbundling has been described as ordering "a la carte," rather than from the "full-service menu." (7) A client might hire a lawyer for trial representation, but not for court filings, discovery, and negotiations. Unbundled services can take many forms, including telephone, Internet, or in-person advice; assisting clients in negotiations and litigation; assistance with discovery; or limited court appearances. (8) For many clients, these limited engagements make a lawyer's services affordable.

Unbundled legal services is touted as a new concept, although lawyers have been providing it for years in estate planning and mediation. (9) Outside the courtroom, unbundled legal services are commonplace. Clients often seek a lawyer's advice before negotiating agreements, or ask a lawyer to draft a document based on an agreement reached without the lawyer's assistance, or bring an agreement prepared by an opposing counsel to a lawyer for review. In each of these scenarios, the lawyer is asked to perform a discrete legal task, rather than handle the entire matter. Business lawyers have provided unbundled services to sophisticated clients for decades. These clients are often either repeat players with some knowledge of the law (10) or in-house lawyers who require the specialized expertise of outside counsel. The concept is more recent in the litigation context. (11) A variety of players provide unbundled services, including pro se clinics, community education programs, and some courthouses. (12)

Unbundling has received a great deal of attention. Everyone concerned with access to justice is looking at it, talking about it, holding a conference about it, or implementing it. In October 2000, the Maryland Legal Assistance Network convened a national conference on unbundled legal services, with attendees from thirty-four states, the District of Columbia, Canada, and Russia. (13) The American Bar Association's Standing Committee on the Delivery of Legal Services has an "unbundled" website to educate lawyers, court administrators, and the media. (14) In Arizona, at the Maricopa Self-Service Center, litigants can consult a list of attorneys who provide unbundled legal services. (15) In May 2001, the American Bar Association's Ethics 2000 Commission submitted its proposed changes to the Model Rules of Professional Conduct, which will clarify and encourage the use of unbundled legal services. (16) Although changes to the rules will not become binding until they are adopted by the individual states, many states are looking into changing their rules. (17) In fact, Maine and Colorado have already adopted such changes. (18)

Unbundled legal services are still relatively unknown in New York. In a statewide survey of New York judges, conducted in 2001, approximately seventy-five percent of the responding judges were unfamiliar with unbundled legal services. (19) New York, usually a forerunner in access to justice circles, (20) has only recently begun to examine the issue. In 1996, a New York State Bar Association commission recommended that the Bar Association explore segmented legal services. (21) Although the House of Delegates approved the commission's report and authorized further exploration, (22) the commission has not revisited the issue. (23) The New York State Bar Association Legal Aid Committee has, however, recently formed a subcommittee to look into unbundled legal services. (24) In addition, the New York City Bar Association is starting to look into the topic. (25) In September 2001, the New York State Unified Court System sponsored its first Access To Justice Conference, which included an unbundling workshop. (26) Many of New York State's judges, court administrators, bar leaders, academicians and advocates joined together to exchange ideas and develop partnerships.

The bench and bar in New York can expect to hear a lot more about unbundled legal services in the future. The debate surrounding its widespread use focuses on several issues. Advocates believe that unbundling increases access to justice, promotes efficiency in the courtroom, and furthers business opportunities for attorneys. (27) Critics contend that unbundling does not extol any of these virtues, but rather raises malpractice and ethical concerns. (28) Untying the bundle in New York State requires a cautious and considerate balancing of the pros and cons.

1. INCREASED ACCESS TO JUSTICE

   Proponents of unbundling view it as a sound mechanism to provide poor clients greater access to the justice system. (29) Advocates of unbundling recognized that providing legal assistance through a neighborhood law office is not adequate. (30) Segmented legal assistance would allow these legal services offices to assist more clients by bypassing slow legal tasks and time intensive administrative functions, such as multiple intake interviews and considering whether the client fits within financial parameters. (31)

   Segmented legal assistance would also allow moderate-income clients to afford various services provided by private attorneys. Unbundling would improve the client's ability to obtain legal advice, help with drafting legal documents, limited representation, or other legal services. (32) Access to affordable legal assistance may encourage those who would otherwise forego an opportunity to present their claims in court and exercise their right to be heard.

2. EFFICIENT JUSTICE

   Some advocates contend that a litigant is more likely to successfully complete a matter with limited help than with none at all. (33) The unbundled services of an attorney may be just the boost a self-help litigant needs. The availability of segmented legal services may help pro se litigants overcome their unfamiliarity with procedural and evidentiary litigation rules. (34) Unbundled legal services benefit the court system because educating and assisting more pro se litigants about civil procedure and evidentiary rules reduce demands on court personnel. (35)

   This view is not shared by all members of the judiciary. A number of New York State judges have expressed concern that unbundled legal services in the courtroom would place an unfair burden on the court and cause greater delay. (36)

   Some judges assert that pro se litigants will not follow through properly and will miss deadlines due to misunderstandings or poor communication. (37) Other judges feel that litigants will be confused over the lawyer's limited role. (38) A number of judges believe pro se litigants will not be able to understand or articulate claims and defenses prepared by an attorney not present at trial. (39)

   United States senior district court judge John L. Kane, Jr., one of the more outspoken opponents of unbundling, believes that the "insurmountable problem" for a pro se trial litigant is the "lack of competence in understanding and using the rules of evidence." (40) "It is ludicrous," Kane writes, "to suggest that in the present system, a layperson armed with a few discrete sticks from the advocate's bundle can emerge from the trial thicket unscathed or that others will not be put to unnecessary expense." (41) While most commentators are more reserved than Judge Kane, there are many who question the effectiveness of segmented legal assistance. The concern is that clients may be left partially prepared, confused, and without enough assistance to make informed choices. (42)

3. CLIENT EMPOWERMENT

   Forrest S. Mosten, the California attorney credited with coining the term "unbundled legal services," believes that clients often feel empowered by the unbundled process. (43) "They feel that they can control their own destiny with the comfort of knowing that the lawyer can be brought in for future full-service representation if the client so chooses." (44) Through their enhanced role in resolving their own legal problems, clients may be better able to avoid future problems and address issues in their lives more independently.

   Opponents of unbundling see the empowerment theory as a justification for providing limited legal assistance. (45) Self-representation is foisted on poor people, "who have more than enough demands on their time and energy without being told that their denial of legal service is really an opportunity for empowerment." (46)

4. LAWYER OPPORTUNITY

   Some proponents of unbundled legal services stress the business opportunities such services provide members of the bar. As clients increasingly represent themselves, turn to non-lawyer providers, or just live with...