Cautionary Notes with Unbundling Legal Services

Unbundled legal service is a method of legal service delivery that allows attorneys to (1) break down legal tasks of their clients and (2) provide limited representation only pertaining to a clearly defined portion of the client’s legal needs. Upon the completion of an attorney’s limited representation, the remainder of the client’s legal responsibilities is subsumed by the client, and the client must handle his or her own remaining legal tasks.

The practice of unbundling legal services stems from the recognition that securing legal services ought not to be an all-or-nothing proposition. By unbundling legal services, clients with specific needs, who may not be financially situated to afford full representation, benefit from receiving assistance on only portions of their cases. Moreover, unbundling legal services increases court accessibility, promotes effective resolution of matters, and aids courts in efficiently handling cases.

Maryland Rules of Professional Conduct 1.2(c) provides that “[a] lawyer may limit the scope of the representation in accordance with applicable Maryland Rules if (1) the limitation is reasonable under the circumstances, (2) the client gives informed consent, and (3) the scope and limitations of any representation, beyond an initial consultation or brief advice provided without a fee, are clearly set forth in a writing, including any duty on the part of the lawyer under Rule 1-324 to forward notices to the client.” Maryland Rules of Professional Conduct 1.2(c). In providing unbundled legal services, the rule only requires that “the scope and limitations of [the] limited representation by an attorney be set forth in writing.” Id.

As stated above, Rule 1.2(c) provides that “[a] lawyer may limit the scope of the representation if the limitation is reasonable [emphasis added] under the circumstances and the client gives informed consent.” Id. Attorneys are professionally responsible in determining whether limited representations are reasonable on a case-by-case basis. Assisting a party with forms or providing brief consultations may constitute as reasonable in relation to a simple uncontested divorce but may not be reasonable for a matter involving complicated marital property and tax issues. To safeguard against this pitfall, attorneys should define the representation specifically in writing and obtain the client’s informed consent.

Maryland Rules of Procedure 2-131(b)(2) and 3-131(b)(2) provide model retainers for attorneys to use as reference in drafting their client retainer agreements. The model retainers enumerate different scopes of representation for the attorney to indicate in relation to their limited representation and provide a sample provision conveying the client’s informed consent to the limited nature of representation:

I understand that except for the legal services specified above, I am fully responsible for handling my case, including complying with court Rules and deadlines. I understand further that during the course of the limited representation, the court may discontinue sending court notices to me and may send all court notices only to my limited representation attorney. If the court discontinues sending notice to me, I understand that although my limited representation attorney is responsible for forwarding to me court notices pertaining to eh matters outside the scope of the limited representation, I remain responsible for keeping informed about my case. Rule 2-132(b)(2). Rule 3-131(b)(2).

I understand that except for the legal services specified above, I am fully responsible for handling my case, including complying with court Rules and deadlines. I understand further that during the course of the limited representation, the court may discontinue sending court notices to me and may send all court notices only to my limited representation attorney. If the court discontinues sending notice to me, I understand that although my limited representation attorney is responsible for forwarding to me court notices pertaining to eh matters outside the scope of the limited representation, I remain responsible for keeping informed about my case. Rule 2-132(b)(2). Rule 3-131(b)(2).

One should bear in mind, however, that this model retainer is not comprehensive and may not be applicable for every unbundled case. The enumerated scopes of representations within the model retainer only encompass a general category of representation without specificity:

… check all that apply: [1] arguing the following motion; [2] attending a pretrial conference; [3] attending a settlement conference; [4] attending the following court-ordered mediation for purpose of advising the client during the proceeding; [5] acting as my attorney for the following hearing or trial; [6] with leave of court, acting as my attorney with regard to the following specific issue or a specific portion of a trial or hearing. Rule 2-132(b)(2). Rule 3-131(b)(2).

Due to this lack of specificity, the model retainer may create disputes as to the extent of the limited representation. For example, the model retainer provides an option for limited representation in attending a settlement conference. The model retainer, however, does not specify whether the representation merely extends to the attendance of a single conference or to the ultimate resolution of the settlement dispute. Consequently, a Pro Se litigant with a lay person’s understanding of the law may interpret this provision to require the attorney in assisting the client in reaching an ultimate settlement agreement while the attorney may have a different interpretation. Therefore, though the model retainers provide a starting point in drafting a retainer, it is imperative for attorneys to note that adjustments of retainers are necessary to provide a comprehensive and specific language in relation to the scope of limited representation.

In providing unbundled legal services, one should also use caution in adhering to the articulated scope of representation provided by the retainer. When providing limited scope representation, attorneys may be tempted to work beyond the initially agreed upon representation. Nonetheless, attorneys should use caution not to extend their work beyond what was initially agreed upon. Exceeding the articulated scope of representation may violate the prior agreement and create a different legal duty. If an attorney finds himself or herself providing legal representation beyond the initial agreement, the attorney should discuss the issue with the client and revise the retainer accordingly. In other words, the engagement needs to be memorialized in writing.

Attorneys should bear in mind that limited representation does not equate to limited workload. When providing limited scope representation, an attorney should review the client’s case in its entirety. Whether representation is made in full or with limitations, factual information from different issues may inter-relate and warrant different legal remedies. Thus, a comprehensive review of factual evidence in its entirety is crucial in providing limited scope representation, as relevant information-that does not blatantly appear relevant-may be overlooked.

A common practice of limited representation involves ghostwriting. Ghostwriting refers to the practice of licensed attorneys drafting pleading, briefs, or other documents on behalf of a pro se litigant. Though there have been disagreements within the legal profession of the ethicality of this practice, Maryland has found such practices to be legally sound.

Bear in mind the ghost writer (i.e. attorney) is subject to Rule 1-311, the pleading must be filed in good faith, for legitimate purposes-otherwise the lawyer may be reasonable whether his or her name is on the paper, or not.

Secondly, ghost writing is prohibited in the Federal Courts in Maryland, pursuant to Local Rule.

The practice of unbundled legal services is still relatively new in the legal profession. The area is evolving and the reader is urged to keep current on all developments.