Wed 18 Apr 2018

Supporting Families Through Change: Unbundled Legal Services Project Part 1

Posted by Guest.Author

Mediate BC is continuing to work to improve access to justice for BC families.  

With the inspiration of the Law Society of BC and the generous funding from The Law Foundation of BC, Mediate BC is leading a project to encourage more BC family lawyers to offer affordable unbundled legal services to families experiencing separation and divorce.[1]  In addition, Access to Justice BC has identified “unbundling” for families as one of its first initiatives.  This project and the A2JBC initiative are running side by side.

While the focus of this project is on using unbundled services to support families using mediation to resolve their issues, the project seeks to learn more about attitudes toward, and experience with, unbundled services of all kinds.

The project sought input from BC family lawyers, family mediators and the public through online surveys.   This is the first of a series of posts commenting on the survey responses.

Different terms are used to describe "unbundled legal services" including "limited scope representation" and "limited scope retainer".  We need a better descriptive term which has meaning for both the legal community and the public.  For the purpose of the surveys we used "unbundling" to describe a lawyer providing legal services for a part, rather than the whole, of the client's legal matter.  The retainer may be for one or more discrete tasks or for one or more specific issues.

Let’s start with the responses from family lawyers.  They often play multiple roles for clients, so we asked them to focus their responses on their lawyer role.

Demographics

45 lawyers responded in total but not all respondents answered all questions.  77% of the respondents were women and 23% were men.  Ages ranged from 31 – 70 with an average age of approximately 48.  76% reported living in a city, 12% in a small city and another 12% in a town.

Types and Frequency of Unbundled Legal Services

76% of lawyers said they provided unbundled legal services.  This is important because it shows that unbundled legal services are not new – lawyers have long provided legal services on this basis in a variety of practice contexts.  Consider providing independent legal advice on a separation agreement or a mortgage, providing a second opinion on a difficult legal issue, providing an initial consultation on a potential claim (including a CBABC Lawyer Referral matter), advising in the role of duty counsel.  Some respondents noted that they didn’t think of these roles as being “unbundling”.  We suspect that lawyers usually offer unbundled services on an ad hoc basis and do not consider them to be a formal part of the lawyer’s practice.  Perhaps we are now seeing a major shift in the system.  With the increasing number of family members who need legal assistance and who cannot afford to hire a lawyer on a full-representation basis the demand has increased to the extent that unbundled legal services could form a solid part of the lawyer’s practice.  (More on the topic of financial arrangements and workable business models in future posts).

The lawyer survey results showed that the number of families they served on this basis was typically low (an average of 3.75 clients per month) and only a quarter of the lawyers who provided these services said that they advertised their unbundled services through their website or otherwise.  So, even if they did offer unbundled services, the public would have a hard time finding them.  This conclusion is supported by the results of the family survey which confirmed that people had a very difficult time finding a lawyer to provide unbundled services (more on this topic later in this series). It seems that unbundling has been around for a long time but it has been provided informally and “under the radar”.

The lawyers described providing a wide variety of unbundled services for families including providing:

• Preparation of documents and forms for the court
• Advice for self-represented litigants in court (procedural and substantive)
• Coaching
• Independent legal advice on agreements
• One-time representation in court or at a discovery
• Other services to support clients using mediation

We probed more deeply into unbundled services to support families using mediation.  100% of respondents (n=19) confirmed that they provide a wide variety of these services:

Some respondents advised that they are willing to provide any unbundled service:  “I can’t say I focus on any one area.  It’s ultimately up to the client how they use my services.”  However, most expressed a preference for a more restricted scope of practice:

• Initial consultation/advice including conflict resolution options
• Independent legal advice on an agreement
• Editing and redrafting of documents/materials for Court
• Coaching on settlement negotiations

Some representative comments:

“Editing and redrafting of materials, as this is the most effective way to help a client.  If they are before the Court with relevant, organized materials, they will be better equipped to meet the needs of the judge in understanding the case.”

“Initial advice and ILA.  Initial advice is crucial to how folks approach conflict resolution.  Section 8 (of the FLA) may be mandatory.  However, the view of counsel will impact on advice given.”

“I prefer unbundled services that will help individuals avoid court.  For example, offers of settlement on a specific issue, preparation of financial and document disclosure, preparation for mediation or taking steps to force the other party into mediation.”

Many lawyers said that they preferred to avoid services relating to litigation, particularly representation at trial.  The important take-away is that lawyers can restrict the type of unbundling services that they provide.  They can design a practice that focuses on the type of services that they find both enjoyable and lucrative.

A key principle of effective unbundling is that the lawyer must make a careful judgment call at the outset of a relationship whether to take on this particular client or the kinds of services requested.  Lawyers identified some of the “red flags” they look for, including:

• Clients who did not have the capacity or ability to self-represent
• Clients who had retained many other lawyers
• Clients who were overly confident or fixed on a position not supported by law
• Clients who did not listen
• Clients with various personality traits described by the respondents as “high maintenance”, angry, manipulative or tending to “pick fights”.

In part 2 of this blog series we will describe the lawyers’ use of various financial arrangements to support unbundling and explore their perceptions of the benefits and concerns about unbundling.

Information about the BC Family Unbundled Legal Services Project can be found here.  Summaries of the responses to all three surveys are posted on that page.

Mediate BC is enormously grateful to the lawyers, mediators and members of the public who participated in these surveys – thank you!  The information was really helpful.  Stay tuned for more information from the BC Family Unbundled Legal Services Project.

Posted by Unbundled Legal Services Project Manager, Kari Boyle.

[1] The project's scope does not include child welfare or child protection matters.

Photo by Naassom Azevedo on Unsplash