According to some studies, approximately 80% of Americans cannot afford to retain attorneys to assist with essential legal services such as leases, deeds, wills, formation of corporations, powers of attorney, or probate. Not only are poor Americans unable to afford counsel, but many middle class families are also unable to afford lawyers.
Frustrated by the high cost of lawyers, some have turned to on line services. These services have their advocates and critics. Others have used do-it-yourself (DIY) forms available at court or legal services websites. These services also have advocates and critics. Some states are allowing non-lawyers to provide assistance in certain cases with limitations and attorney supervision. New York State has such a program for court navigators in consumer debt and landlord tenant cases.
Unbundling of services or legal services ala carte is another alternative to on-line services and a supplement to DIY services. Unbundling or ala carte means that the client and the lawyer carefully negotiate the limits of the attorney’s representation of the client. Divorces are a good example of how services might be unbundled. In a divorce action there are many elements, child custody, the divorce itself, future support for the care taker spouse and children, and division of existing property to name but four. Suppose that the divorcing couple had worked out custody and support, but not the division of existing property. In an unbundled or ala carte setting, the couple could retain their separate counsel solely for the issues relating to the division of existing property and handle the balance of the case pro se. This allows the couple avoid paying attorney fees on the routine or settled aspects of the case and spend their money on the hard issue where having a lawyer is critical.
One aspect of unbundled or ala carte services is that the attorney is not responsible for preparing papers or making court appearances on the issues excluded from the representation. Under the current practice, attorney appearances are for a case, not a limited purpose.
Under Rule 1.2 of the Code of Professional Responsibility, this type of limited representation is currently possible, but not frequent. However, as the profession, the public and the courts become more familiar with unbundled or ala carte services, its frequency will doubtless grow. In some states, there are clinics specializing in providing ala carte services in immigration and divorce.
Unbundling or ala carte services should make critical legal services more available to the middle class, as the consumers will be buying more limited services, thereby controlling costs.
The drawback with unbundled or ala carte services is ensuring that the client understands the limits on the attorney’s representation. Therefore, lawyers and clients contemplating unbundled or ala carte legal services must carefully and fully discuss the scope of representation and commit to that understanding in an agreement that spells out the details of the services included and the services excluded by the representation. It is our responsibility as lawyers to inform and educate our clients to ensure the best possible outcome when representation is limited in scope. We invite you to join this conversation on our blog at nyclalaw.wordpress.com
Carol A. Sigmond
Carol A. Sigmond is the President of the New York County Lawyers Association and is in private practice in New York City. Her practice specializes in construction industry matters, including development agreements, contracts, suretyship, indemnity agreements, and litigation, including among other things, breach of contract, mechanic’s liens, diversion of trust funds and construction defects. You can reach Carol at email@example.com. Follow Carol on twitter @NYCLAPRES.