The American Bar Association’s 2014 World Justice Project Rule of Law Index shows the United States rating 65th out of 100 countries for access to and affordability of civil legal services, the lowest ranking among all industrialized nations surveyed. This finding, coupled with a trend toward self-representation and an overall Do It Yourself movement, has been driven by obstacles to legal help and the widespread use of technology. A growing number of legal consumers are self-educating and becoming comfortable with handling tasks traditionally performed by attorneys. This is creating similar challenges for lawyers as previously faced by realtors, travel agents and many other service industries. Non-attorney legal service providers have taken notice of this gap and are meeting consumer demand with great success. However, we all know that it is not a substitute for the knowledge and skills of a licensed attorney. The good news is that there is a viable private market solution.
Currently, the profession is readily available to legal consumers who are able to afford the costs of traditional full service representation, and the profession is at least attempting to address the legal needs of consumers at or below the 125% federal poverty level through pro bono services, legal aid providers and clinics. However, for the growing number of moderate-income individuals, the average legal consumer, legal help is not affordable. According to the 2015 Census ACS survey, the median household income for the United States was only $55,775. Attorneys in rural areas usually charge between $100 and $200 per hour, while attorneys typically charge between $200 and $400 or more in urban areas, and those fees can add up quickly. Of course, rates vary based on what state you live in, the size of the firm, and the attorney’s status within the firm.
A viable solution to address the needs of these moderate-income legal consumers is providing “unbundled” or “limited scope representation” services. Limited scope representation is when an attorney represents or assists a party with part, but not necessarily all of his or her legal matter. The attorney and client enter into a detailed written agreement defining the scope of the legal assistance, including which tasks the attorney will be responsible for and which tasks the client will handle. Many types of limited scope representation are possible, including but not limited to providing legal advice to an individual about a case or legal problem; drafting documents, entering an appearance, and assisting the client in developing a legal strategy for court hearings.
Limited scope representation is not DIY or a lesser-quality service, and attorneys are still bound by their ethical obligations. By paying an attorney to handle parts of a case consumers not only reduce costs, but also gain access to legal services that may not otherwise be attainable. Legal consumers using these services are also able to maintain greater control over their case and court processes, and hearings become more efficient with the limited assistance of an attorney because self-represented litigants are more educated and better prepared.
Concerns have been expressed within the profession about increased liability of unbundling legal services, and also about how to best assist self-represented litigants within the rules. As is in providing traditional legal services, providing limited scope representation should not expose an attorney to additional risks as long as good intake and case management procedures are followed. This would include a detailed retainer agreement, a process for checking conflicts, and of course good communication. However, I will say that my experience with insurers in this arena has been frustrating. If you are looking to add unbundled services to your practice, make sure your professional liability insurance covers it. Even though unbundling is not exactly new, the practice is not typically discussed for insurance purposes, and insurers haven’t quite figured out how to assess it yet. That said, I assume with time and the growth of unbundled service providers that insurance premiums will adjust to more adequately reflect the actual risks associated with the practice.
As for best practices in assisting self-represented litigants, the first place to start would be reviewing your state-specific rules of civil procedure and rules of professional conduct regarding ghostwriting and limiting the scope of attorney representation. You also should be mindful of the cases you accept on a limited scope basis. Not all legal matters are suitable for unbundling. If the case is very technical or time-sensitive it may not be appropriate. If the client does not have the time or ability to be educated to handle the tasks delegated to them then unbundling may not be a good fit. It’s also not a good idea to unbundle highly contested matters where there is a lot at stake, such as money, a home, or rights to children.
With all of that said, a lot of routine legal matters, if unbundled, would be beneficial to legal consumers. Unbundling also lends itself well to flat fees, which not only help the consumer better plan for the costs of the legal matter, but also tend to reduce or eliminate the outstanding account balances that often plague traditional practices from consumers who are unable to pay the full costs of services rendered.
An unbundled legal services component can be added to any delivery model, whether you are in a traditional brick-and-mortar practice, a virtual law firm, or some combination of the two. Cloud-based software and technological innovations are making it easier to automate documents and assist legal consumers without adding too much additional overhead to implement these services. The bottom line is that in order to stay relevant, the legal profession must acknowledge and respond to the growing needs and demands of the average legal consumer. There is a profitable, untapped market for legal consumers of moderate means yet to be adequately addressed, and like it or not we are competing with non-attorney legal service providers for the business of this growing, underserved market.
About the Author
Brooke Moore is a legal entrepreneur and the founder of ArkansasVirtualLawyer.com, the first virtual law firm in Arkansas. She has worked on the Arkansas Access to Justice Commission’s task force on limited scope representation to better serve the needs of today’s legal consumers. You can reach her at brooke@arkansasvirtuallawyer.com or on Twitter @ARVirtualLawyer.