Vol. 27, No. 9
Legal Services News
Unbundling Family Law Practice Creates Pro Bono Opportunites
by Melody Kay Fuller
The Concept of Unbundling
The courts, legal aid and pro bono referral programs, and consumer advocates increasingly are looking to unbundled legal services as a mechanism of providing legal assistance to those unable or unwilling to retain an attorney for representation in a family law case.1 A lawyer "unbundles" services by providing a client with some, but not all of the functions normally involved in a matter and by limiting representation to a specific task or series of tasks.
For example, in a dissolution of marriage case, a lawyer generally would provide an array of services, such as investigation, advice, drafting, research, and court representation. Unbundling allows the client and the attorney to determine the extent of legal assistance provided for each discrete task.
The concept and practice of unbundling is commonly used in estate planning, transactional work, or mediation. Unbundling may be a natural outgrowth of the public's recognition that consumers do have options, including alternative dispute resolution, that allow them to limit reliance on lawyers and the courts. Given all the forces that encourage discrete task work, some lawyers assert that unbundling is a conceptual model for the lawyer-client relationship that will transform family law practice in the twenty-first century.2
Ethics of Discrete Task Services
The Colorado Bar Association Ethics Committee recently responded to some of the numerous and serious ethical concerns about the burgeoning practice of unbundling. The Committee was aware of the potential dangers with the practice of discrete task services, but recognized the large number of pro se litigants with domestic relations cases who needed information and advice about legal procedures, principles, and strategies. Reluctant to create barriers to the procurement of legal advice, the Committee gave general approval for discrete task work in Formal Opinion 101, "Unbundled Legal Services," adopted early this year after considerable deliberation.3 The Opinion concludes: "The Colorado Rules of Professional Conduct, and especially Rule 1.2, allow unbundled legal services in both litigation and non-litigation matters."4
Colo.RPC 1.2 allows a lawyer to limit the objectives of representation, with client consent, but the Ethics Committee cautions lawyers to do sufficient inquiry and analysis of the factual and legal elements of the problem. Opinion 101 also instructs lawyers to warn pro se litigants that they may be confronted with matters they will not understand.5 The Colorado Supreme Court Rules Committee has proposed an amendment to Colo.RPC 1.2 to require lawyers to disclose the risks and benefits of limited representation before providing limited services in litigated matters.6
Lawyers should be ever-vigilant, as in a full-service practice, to avoid encouraging a client to engage in any kind of behavior that would be improper for the lawyer (Rules of Professional Conduct, and Comments thereto, Rules 1.2, 1.16, and 3.1). C.R.C.P. Rule 11 dictates that an attorney may not condone a client filing a pleading that the lawyer is ethically prohibited from signing. All the ethical rules and constraints of professionalism should be employed in discrete task work, even though the mechanics of practice are somewhat different.
The Mechanics of Providing Unbundled Services
Many clients and cases will not be appropriate for discrete task services. The lawyer is responsible for determining whether a pro se litigant is capable of understanding the risks inherent in self-representation and whether the litigant can adequately present the facts and argument in a given case. This requires careful consideration of the complexity of the facts, law, and procedure; anticipation of evidentiary issues; and a willingness to try to explain how these problems may be addressed.
A lawyer should not undertake to provide unbundled services without a thorough intake and screening process for each potential client. It is the lawyer, not the client, who ethically is responsible for obtaining the facts necessary to determine the legal issues and the complexity of the case. Many clients are unable to recognize the significance of facts that are critical to even a basic analysis of the case; thus, questions should be structured to elicit all relevant information.
The practice of "ghostwriting," where an attorney drafts pleadings or briefs for a client to file without the attorney's signature, resulted in a strong reprimand from a Colorado federal court in 1994.7 Although the Tenth Circuit did not agree with the district court's conclusion that the attorney violated Rule 1.1 of the Colorado Rules of Professional Conduct, lawyers must be aware that some judges consider ghostwriting to be a "deception" on the court, violating the duty of candor to the tribunal. Some courts may prefer that attorneys indicate on pleadings that the document was drafted with the assistance of counsel, and attorneys should consider inquiring about the practice in any court in which they intend to file a ghostwritten document. A proposed amendment to C.R.C.P. Rules 11 and 311 will require attorneys to sign pleadings they have "substantially" drafted for a pro se litigant.8
Lawyers providing unbundled services should carefully utilize retainer forms to ensure that litigants understand the limitations and risks of the limited services and to protect practicing lawyers from claims due to advice or services not provided. Retainers should disclose both the work to be performed by the attorney and a list of other tasks that the client will do or that will not be done. Attorneys may want to include a paragraph for civil immunity for counsel where the client waives any claims of professional negligence for services not included in the list of lawyer tasks.9 It is unclear, however, to what extent such a waiver will be effective.
Malpractice exposure for providing unbundled legal services cannot be ignored. As in all lawyer-client relationships, malpractice claims are best protected against by clear communication and a positive personal relationship between lawyer and client. In any event, all lawyers practicing family law, unbundled or full service, should carry professional liability insurance.
Opportunities to Provide Pro Bono Unbundled Services
The Legal Aid Society of Metropolitan Denver and the Metro Volunteer Lawyers ("MVL," formerly the Thursday Night Bar Program) operate a Family Law Day project in metropolitan area district courts that provides pro se litigants with a pro bono lawyer at the courthouse for technical assistance. Volunteer lawyers help clients prepare the initial pleadings, which MVL files and then arranges for service on the respondent. Later, the volunteer lawyers help the litigants prepare financial affidavits and notices of hearing for a day set aside for hearing these cases. MVL prepares the necessary court documents, including decrees, separation agreements, permanent orders, child support orders, and entry/withdrawal orders. On the day of the hearing, the volunteer lawyer represents the client, and the court allows the attorney to withdraw immediately following the hearing.
Boulder County Legal Services ("BCLS"), providing assistance for low-income residents in the Twentieth Judicial District, recently implemented another type of pro se program because pro bono attorneys were not available to meet the demand of financially eligible clients with domestic relations cases. The BCLS program is designed to provide individual advice and information necessary for clients to handle their own domestic relations cases from filing through court hearings.
Clients are given a package of forms used by the Twentieth Judicial District, including motions for filing in forma pauperis. A pro bono attorney is available one afternoon each week to give clients information about forms and procedures and to advise litigants about substantive issues and strategy. Retainer forms explaining the discrete task services offered are provided to clients to emphasize the limited scope of assistance. Clients are urged to take advantage of other local resources, such as the YWCA educational programs on divorce, custody, and support; Safehouse; and other counseling services.
Some district courts around the state have implemented case management systems, designed to provide pro se litigants with the procedural information necessary to process their family law cases. The Boulder District Court employs a case manager who meets with individual pro se litigants to answer questions about forms and procedures. The Denver District Court's Information and Referral Office is staffed by a case manager, but also uses volunteer lawyers to provide guidance to pro se litigants.
A wide variety of district court case management programs and pro se clinics are used throughout the state. Lawyers are needed to staff these various projects in many communities; potential volunteers should call their local pro bono program, bar association, or court to find out which programs use volunteer lawyers in their district. Lawyers will find it particularly rewarding to assist pro se litigants with discrete task services as these clients are especially appreciative and motivated.
1. See, e.g., "Post-Decree Multi-Door Courthouse: A Pilot Program for the State," 27 The Colorado Lawyer 109 (June 1998); Chief Judge Connie Peterson, Denver District Court, "Is Unbundling Legal Services An Answer?" 19 The Docket 15 (Feb. 1996); "Supporting Fathers and Families in the Judicial System," Colorado Responsible Fatherhood Initiative, Judicial Action Committee Report (Fall, 1997).
2. Mosten, "Unbundling of Legal Services in Family Law," 4 ACFLS (Newsletter of the Association of Certified Family Law Specialists) (Sept. 1994); Mosten,"Unbundling of Legal Services and the Family Lawyer," 28, No. 3, Family Law Quarterly (Fall, 1994).
3. See "Formal Opinion No. 101: Unbundled Legal Services," 27 The Colorado Lawyer 21 (April 1998).
4. Id. at 22.
6. See "Court Business: Proposed Amendments Concerning Limited Representation of Pro Se Parties," 27 The Colorado Lawyer 102 (Aug. 1998).
7. Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D.Colo. 1994), rev'd on other grounds, 85 F.3d 489 (10th Cir. 1996).
8. Supra, note 6 at 101.
9. Whether a malpractice waiver and limited engagement retainer will be enforceable and binding or is ethically permissible is only partially addressed by Formal Opinion 101: "A lawyer may not so limit the scope of the lawyer's representation as to avoid the obligation to provide meaningful legal advice, nor the responsibility for the consequences of negligent action." Supra, note 3 at 22.
Legal Services News is published bimonthly to apprise members of the bar of legal services projects, issues, and pro bono opportunities. Readers are encouraged to submit articles and topic ideas for this department to Department Editor Eric B. Liebman, an associate at Reiman & Bayaz, P.C., 1600 Broadway, #1340, Denver, CO 80202, (303) 860-1500.
Melody Kay Fuller is Supervising Attorney for Boulder County Legal Services, (303) 449-2946.
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