Unbundling A webinar with M. Sue Talia

Unbundling What it is (and isn’t) What it is (and isn’t) Ethical and Malpractice issues Ethical and Malpractice issues Training Training Resources Resources How to obtain buy-in from courts and attorneys How to obtain buy-in from courts and attorneys Q & A Q & A

Quiz In your struggle to address the challenges posed by self represented litigants, how important would it be to provide an incentive to the private bar to assist in their representation? In your struggle to address the challenges posed by self represented litigants, how important would it be to provide an incentive to the private bar to assist in their representation? Critically important Critically important Very important Very important Sort of important Sort of important Not important Not important No, thanks, we’ve got it covered No, thanks, we’ve got it covered

What it isn’t Limited liability Limited liability Second rate service Second rate service Lowered standard of care Lowered standard of care Just for poor people Just for poor people A threat to lawyers offering full service representation A threat to lawyers offering full service representation New New Going to go away Going to go away

What it is An attorney/client relationship An attorney/client relationship Limited scope Limited scope Coaching Coaching Ghostwriting Ghostwriting Document assistance Document assistance Research and strategy Research and strategy Limited court appearances Limited court appearances A marketing opportunity and potential profit center for lawyers A marketing opportunity and potential profit center for lawyers

Where it works best High volume of pro se litigants in courts designed for lawyers High volume of pro se litigants in courts designed for lawyers Litigants who are individuals (not entities) Litigants who are individuals (not entities) Litigants without significant language or mental health barriers Litigants without significant language or mental health barriers Legal issues which are not extremely technical Legal issues which are not extremely technical Litigants who take a realistic approach to their legal matter Litigants who take a realistic approach to their legal matter

Quiz What percentage of family law litigants appear in court without lawyers? What percentage of family law litigants appear in court without lawyers? Under 50% Under 50% Between 50% and 60% Between 50% and 60% Between 60% and 70% Between 60% and 70% Between 70% and 80% Between 70% and 80% More than 80% More than 80%

Development of the Model Family law has been the primary focus Family law has been the primary focus Consumer demand has been the driving force Consumer demand has been the driving force Client satisfaction has further reinforced the practice Client satisfaction has further reinforced the practice Improved calendar efficiency has brought the courts along Improved calendar efficiency has brought the courts along Expansion of the model to other fields of law Expansion of the model to other fields of law

The Continuum Advice and counsel Advice and counsel Reviewing client-drafted materials Reviewing client-drafted materials Ghostwriting and document assistance Ghostwriting and document assistance Role playing, coaching, and strategy Role playing, coaching, and strategy Negotiation Negotiation Limited court appearances Limited court appearances

Breaking it Down by Task By far the most common By far the most common The attorney does the technical or more complex parts The attorney does the technical or more complex parts The attorney coaches the client on more routine tasks The attorney coaches the client on more routine tasks Examples of how it might work Examples of how it might work

Breaking it Down by Issue Attorney does all tasks related to a complicated issue Attorney does all tasks related to a complicated issue Client does all tasks related to the simple issue Client does all tasks related to the simple issue Most unbundling arrangements involving a court appearance are issue based rather than task based Most unbundling arrangements involving a court appearance are issue based rather than task based Exception: one-time appearance to argue a single motion Exception: one-time appearance to argue a single motion

Ethical Rules Limitations on scope must be informed and in writing Limitations on scope must be informed and in writing Limitations on scope must be reasonable under the circumstances Limitations on scope must be reasonable under the circumstances Changes in scope must be documented Changes in scope must be documented Attorneys must advise of the existence of related issues even if not asked Attorneys must advise of the existence of related issues even if not asked

Ethics Opinions Colorado 101 Colorado 101 LACBA 502 LACBA 502 Ethics Primer Ethics Primer Links to all on selfhelpsupport.org Links to all on selfhelpsupport.org

Risk Management Clear delineation of the nature of the scope Clear delineation of the nature of the scope Rigid adherence to the limitation Rigid adherence to the limitation Redefining the box before stepping outside Redefining the box before stepping outside Good communication tools Good communication tools Use of materials office procedures and forms designed with limited scope in mind Use of materials office procedures and forms designed with limited scope in mind

Malpractice Considerations Few cases, although the practice is widespread among attorneys serving lower and middle income individuals Few cases, although the practice is widespread among attorneys serving lower and middle income individuals Most problems result from breakdowns in communication between attorney and client Most problems result from breakdowns in communication between attorney and client Expanding the scope without obtaining a new written limitation Expanding the scope without obtaining a new written limitation Failure to advise on related issues Failure to advise on related issues

Quiz Among the following, what is the most common cause of the breakdown of the attorney/client relationship? Among the following, what is the most common cause of the breakdown of the attorney/client relationship? Lawyers charge excessive fees Lawyers charge excessive fees Lawyers fail to communicate effectively with their clients Lawyers fail to communicate effectively with their clients Lawyers abandon their clients Lawyers abandon their clients

California Family Law Risk Management Materials Available as a link on the unbundling section of selfhelpsupport.org library Available as a link on the unbundling section of selfhelpsupport.org library Comprehensive Comprehensive Turn key Turn key Cost effective Cost effective Simple to use Simple to use Multiple uses for each checklist Multiple uses for each checklist

Poster Child Good communication skills Good communication skills Able to make decisions and accept responsibility for them Able to make decisions and accept responsibility for them Desire to remain in control of their legal matter Desire to remain in control of their legal matter Access to the web, self help centers, or other resources which they can use to augment the attorney’s assistance Access to the web, self help centers, or other resources which they can use to augment the attorney’s assistance

Poster Child Educated (but not necessarily) Educated (but not necessarily) Tech savvy (but not necessarily) Tech savvy (but not necessarily) What about DV? What about DV?

Making the analysis Limitations on scope must be tailored Limitations on scope must be tailored By issue By issue By litigant By litigant By court By court By task By task

Benefits To litigants To litigants To courts To courts To attorneys To attorneys To society To society

Training Quality training essential Quality training essential Problems are generally practical rather than ethical Problems are generally practical rather than ethical Follow up, mentors, and study groups Follow up, mentors, and study groups pli.edu – free three hour training on the web pli.edu – free three hour training on the web Introduction to limited scope Introduction to limited scope Designed to be tailored to other states Designed to be tailored to other states

Areas Which are Ripe Landlord/tenant Landlord/tenant Bankruptcy Bankruptcy Small civil Small civil Small claims assistance Small claims assistance Insurance coverage issues Insurance coverage issues Consumer law Consumer law

Other Resources Risk Management Materials being tailored to other areas of law Risk Management Materials being tailored to other areas of law Ripe for tailoring to other states as well Ripe for tailoring to other states as well Many listed on selfhelpsupport.org Many listed on selfhelpsupport.org Unbundledlaw.org Unbundledlaw.org

Obtaining Buy In from Courts Judicial education Judicial education High volume pro se litigants in courts designed for attorneys High volume pro se litigants in courts designed for attorneys Judges see intelligible pleadings and well drafted, enforceable orders Judges see intelligible pleadings and well drafted, enforceable orders Use of attorney expertise where it is needed most is of great benefit to judges Use of attorney expertise where it is needed most is of great benefit to judges

Obtaining Buy In from Courts Education required to deter courts from expanding scope Education required to deter courts from expanding scope Educate judges on the benefits to them in the form of more efficient court calendars and savings in judicial and staff time Educate judges on the benefits to them in the form of more efficient court calendars and savings in judicial and staff time Fewer documents rejected for errors in form Fewer documents rejected for errors in form Fewer continuances for improper service Fewer continuances for improper service More seamless flow of litigation More seamless flow of litigation

Obtaining Buy In from Attorneys Not a threat to the traditional bar Not a threat to the traditional bar Use the statistics in your state Use the statistics in your state Focus on fields with high volumes of pro se litigants Focus on fields with high volumes of pro se litigants Target the segments of the bar which already serve these populations Target the segments of the bar which already serve these populations Treat it as a marketing opportunity for lawyers wanting to grow their practice Treat it as a marketing opportunity for lawyers wanting to grow their practice

Obtaining Buy In from Attorneys If the top brass aren’t receptive, don’t give up If the top brass aren’t receptive, don’t give up Go to the grass roots Go to the grass roots Remove rule and ethics impediments where they still exist Remove rule and ethics impediments where they still exist Find a local champion who can talk to the stakeholders Find a local champion who can talk to the stakeholders

Finding Support In the Bar Access to Justice groups Access to Justice groups Pro Bono recruiters Pro Bono recruiters Legal aid programs Legal aid programs Self Help center staff Self Help center staff Rural or inner city lawyers Rural or inner city lawyers Enlist judges with heavy pro se calendars Enlist judges with heavy pro se calendars Stress the marketing opportunities Stress the marketing opportunities

Support Attorneys Willing to Try Use and tailor risk management materials, forms and procedures which have been proven to work in other states Use and tailor risk management materials, forms and procedures which have been proven to work in other states Make it as risk-free as possible Make it as risk-free as possible Make it as easy as possible Make it as easy as possible Offer free or low cost training wherever there is a need and people are willing to attend Offer free or low cost training wherever there is a need and people are willing to attend

Support Attorneys Willing to Try Organize list serves, support groups, or other sources of mentoring and a place to discuss solutions to common problems Organize list serves, support groups, or other sources of mentoring and a place to discuss solutions to common problems Create and tailor Best Practices Create and tailor Best Practices Create and share marketing tools Create and share marketing tools Keep the standard HIGH and provide the materials to make it hard to mess up Keep the standard HIGH and provide the materials to make it hard to mess up Reinforce client satisfaction, attorney satisfaction, and profitability Reinforce client satisfaction, attorney satisfaction, and profitability

Questions to Ask What do you see as the greatest impediments in your state? What do you see as the greatest impediments in your state? Where is the greatest need in your state? Where is the greatest need in your state? Who represents the groups which will most likely benefit? Who represents the groups which will most likely benefit? What groups need to be neutralized or bypassed? What groups need to be neutralized or bypassed? Who is indispensable and must buy in? Who is indispensable and must buy in?

Where to Find a Roadmap My article, “Roadmap to a Successful Unbundling Program” posted on the unbundling section of selfhelpsupport.org My article, “Roadmap to a Successful Unbundling Program” posted on the unbundling section of selfhelpsupport.org Details what factors, conditions and players are Details what factors, conditions and players are Indispensable Indispensable Desirable but not indispensable Desirable but not indispensable Helpful if willing Helpful if willing How to sell each of them How to sell each of them

Conclusion It’s a question of “how?” and “when?” not “whether?” It’s a question of “how?” and “when?” not “whether?” Look at the statistics Look at the statistics Huge population base which does not qualify for legal aid and is currently not served by the legal profession Huge population base which does not qualify for legal aid and is currently not served by the legal profession If we don’t serve them, someone less competent will If we don’t serve them, someone less competent will

Q & A