As litigation costs have skyrocketed in recent years, unbundled or limited scope representation has gained traction in the legal world. The concept, introduced by the Colorado Supreme Court in the late 90s, sets out an alternative to traditional full-service representation by providing an a la carte option where clients can receive select services from an attorney while handling other portions of the case themselves, making legal representation more affordable.
What is Unbundled Representation?
The idea was solid in theory. Representing oneself is not a great option for most people who lack the necessary knowledge of intricate legal processes required to litigate a case successfully. On the other hand, hiring an attorney for full-scale representation can run up bills of $500,000 or more, even in seemingly routine cases. These exorbitant expenses have become a barrier to pursuing valid legal claims or defending against spurious ones, which can effectively shut the courthouse doors for many.
Enter limited scope representation, the use of which has increased over the past two decades. Although there have been instances where it works seamlessly, more often than not, it is a fraught process that opens the door to challenges, confusion, and concerns about transparency in legal proceedings, thereby perpetuating, rather than reducing, frivolous litigation.
Two Common Issues with Unbundled Legal Services
As a litigator, I have noticed two primary issues with unbundled legal services. The first revolves around the difficulty opposing lawyers face in identifying whom they should communicate with—the party or the unbundled attorney. The ethical rules prohibit a lawyer from contacting a party it knows to be represented by counsel. Instead, the lawyer must talk to the other lawyer. But when the opposing lawyer is providing unbundled services, it is unclear whether a lawyer should deal with the unbundled counsel or the party itself, which raises questions about the proper communication channels and causes confusion.
Second, limited scope representation introduces a potential ethical dilemma related to Rule 11 obligations. Among other things, Rule 11 requires that lawyers certify to the court the truthfulness of the information presented in legal pleadings and that they have conducted a reasonable investigation to verify accuracy. Lawyers who violate this obligation can be sanctioned. But, in the unbundled scenario, where a lawyer assists in drafting documents but does not sign them, this crucial requirement is circumvented—the lawyer effectively drafts the document for the client to sign, which means that the lawyer is not bound to ensure the accuracy of the information in the document. Thus, a lawyer might aid their client in filing documents without assuming this responsibility, potentially resulting in the submission of false or frivolous claims or arguments with little to no accountability. This problem, therefore, perpetuates the issues.
Thus, while the concept aims to make legal assistance more affordable and accessible, these two issues—confusion regarding communication channels and the potential disregard for Rule 11 obligations—cast a shadow on the effectiveness of unbundled representation. But since its use shows no signs of slowing down, I believe that the legal community must address these ethical concerns and establish more specific guidelines to ensure that legal proceedings maintain their integrity.