Unbundling Legal Services
The provision of legal services through unbundled legal service arrangements is permissible under D.C. Rule 1.2, provided the client is fully informed of the limits on the scope of the representation and those limits do not bar the provision of competent service. Not only the duty of competence, but all the duties that generally attach to lawyer-client relationships will apply to such arrangements, including diligence, loyalty, communication, confidentiality and avoidance of conflicts of interest. Opposing counsel who is dealing with a party who is proceeding pro se should treat that party as unrepresented unless and until the party or a lawyer for the party provides reasonable notice that the party has obtained legal representation. The D.C. Rules of Professional Conduct do not articulate any requirement that attorneys must identify themselves to the court if they provide assistance to a pro se litigant in the preparation of documents to be filed in court, but attorneys who provide such assistance to pro se litigants should check whether any other source of law in the relevant jurisdiction imposes a disclosure requirement.
In this opinion we join the ethics committees of many other jurisdictions in examining the practice of "unbundling" legal services. "Unbundling" refers to the separation of the tasks full service lawyers typically conduct into their discrete components, only some of which the client contracts with the lawyer to provide.1 Examples of unbundled service arrangements include a lawyer who drafts a complaint or an appellate brief for a client to file pro se, counsels a client through an uncontested divorce without filing a notice of appearance in the case, or advises a small business about how to institute debt collection procedures or drafts a contract for it. See ABA Bar Association Section of Litigation, Report of the Modest Means Task Force, Handbook on Limited Scope Legal Assistance 16-46 (2003) [hereinafter ABA Task Force] (giving numerous examples). Advocates argue that such arrangements offer creative means of addressing the current crisis in the provision of legal services to persons of modest means. Id. at 8 (noting a finding that at least one party is unrepresented in 90% of domestic relations cases in the District of Columbia). By paying for only some of the services a full service lawyer would provide, clients may save considerable sums. Even more importantly, clients of modest means may be able to afford to obtain legal services that otherwise would be inaccessible to them. For example, a client might not be able to enter into a full service representation arrangement that required up-front payment of a retainer of several thousand dollars, but could afford to pay a lawyer at the same billing rate for selected services on a pay-as-you-go basis.
As all commentators who have
addressed the increasing popularity of unbundling arrangements have noted,
however, such practices raise significant ethics issues. We therefore
write to provide guidance on questions the unbundling of legal services
may raise under the D.C. Rules of Professional Conduct.
The first question is whether the unbundling of legal services is permissible at all under the D.C. Rules. We are convinced that it is. In so concluding, we join all the ethics committees and judicial opinions of other jurisdictions of which we are aware in reasoning that a client may, if fully informed and freely consenting, contract for limited service arrangements with a legal services provider.2 This conclusion rests on the express language of D.C. Rule 1.2(c), which states that "a lawyer may limit the objectives of the representation if the client consents after consultation." Unbundling legal services is simply a limiting of the objectives of a lawyer-client relationship. In this sense it is neither particularly novel nor particularly troubling.3
It is likewise clear, however,
that the provision of legal services through unbundling arrangements cannot
sweep away the applicable rules of professional conduct. We recently considered
similar issues in Opinion 316, in which we examined the provision of legal
information by lawyers through internet chat room communications. As we
noted there, once the provision of even limited legal services gives rise
to a client-attorney relationship, all the usual duties of the D.C. Rules
of Professional Conduct attach to that relationship.4
D.C. Ethics Op. 316 at 231. These duties include competence, diligence,
communication, confidentiality and the avoidance of conflicts of interest.
D.C. Rule 1.1 provides that lawyers must provide competent representation to their clients, and the unbundling of legal services in no way obviates lawyers’ duties of competence. In other words, the scope of the services may be limited but their quality may not. When hired to diagnose legal problems, an attorney providing services under an unbundling arrangement must be as thorough in identifying legal issues as an attorney who intends to continue with a case through its conclusion. See D.C. Rule 1.1 comment  ("Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve"). An attorney who discovers that a client has a legal problem that falls outside the scope of the limited service agreement should inform her client of the problem, the fact that she is not representing the client regarding it, and that the client should consider seeking independent legal representation. See Los Angeles County Bar Assoc. Ethics Op. 502, at 1 (Nov. 4, 1999) (attorney in limited scope arrangement "has a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of retention, and to inform the client that the limitations on the representation create the possible need to obtain additional advice, including advice on issues collateral to the representation").5
Another consideration is whether
a matter can be handled competently through a limited service arrangement.
Because of the limits short term or limited purpose arrangements may place
on a lawyer’s ability to assist the client with complex legal problems,
some cases may not be appropriate for unbundling. The ABA Ethics 2000
Commission revision to Model Rule 1.2(c) thus provides that a lawyer may
limit the scope of representation only "if the limitation is reasonable
under the circumstances," and in accompanying comment  gives the following
The ABA Task Force gives the following additional advice: "Lawyers should consider several factors in determining whether limited representation is appropriate, including the capacities of the client, the nature and importance of the legal problem, the degree of discretion that decision-makers exercise in resolving the problem, the type of dispute-resolution mechanism, and the availability (or not) to the client of other self-help resources." ABA Task Force at 59.6
There are few precedents considering
conflicts of interest issues in the limited service representation context,
but a recent opinion of the Association of the Bar of the City of New
York Committee on Professional and Judicial Ethics ("Committee") provides
helpful preliminary guidance. In Opinion 2005-01, the Committee considered
two bar association pro bono programs under which large firm commercial
lawyers provide initial legal consultations, and sometimes some additional
representation, to individuals seeking to file Chapter 7 bankruptcy petitions.
The inquirer explained that it would be infeasible for the pro bono lawyers
to conduct a complete conflicts check prior to every consultation to see
if any creditor of the prospective client was a client of the pro bono
lawyer’s firm. In considering this issue, the Committee examined evidence
about how often Chapter 7 debtors end up in contested proceedings in which
a creditor objects to the discharge of the debt. The statistics showed
that such contested Chapter 7 proceedings are rare. The Committee therefore
concluded that lawyers participating in the pro bono programs have a duty
to avoid conflicts arising from representing a client adverse to an existing
client of their firm, but that they can generally satisfy this duty by
determining, in their initial interview with the debtor, whether any unusual
facts suggest direct adversity with a particular creditor so as to require
further investigation into whether the creditor is the firm’s client.
Moreover, the Committee observed, in the rare case in which a client creditor
does object to the discharge of a debt or otherwise takes action adverse
to the Chapter 7 debtor, the pro bono lawyer cannot represent the debtor
unless both clients consent to the dual representation after full disclosure.
In other words, the low likelihood of adversity with another client under
the particular facts presented lessens the extent of the conflicts investigation
required in connection with an initial consultation. Where such a conflict
is more likely, however, the rules do not change simply because the representation
of the second client involves a limited service arrangement.
In short, attorneys participating
in unbundled service arrangements owe the duties of diligence, promptness,
loyalty, and communication within the defined scope of the representation
as does any lawyer under D.C. Rules 1.3 and 1.4, along with the duties
of confidentiality and avoidance of conflicts of interest under D.C. Rules
1.6, 1.7, and 1.9.7
See D.C. Ethics Op. 316 (attorney providing tailored legal advice
rather than general legal information over the internet may create an
attorney-client relationship and, in doing so, incurs the same duties
of confidentiality and avoidance of conflicts as an attorney providing
face-to-face legal counseling).
With respect to some issues, however,
attorneys’ duties in the context of unbundled service arrangements are
less clear. One such issue concerns communications with an opposing party.
When an attorney is assisting a client for some purposes but not for others,
the question may arise as to whether that client is "represented" for
purposes of D.C. Rule 4.2, which forbids lawyers to communicate directly
with persons "about the subject of the representation with a party known
to be represented by another lawyer in the matter" without the prior consent
of the lawyer representing such person. D.C. Rule 4.2(a).
When a lawyer provides only
limited or behind-the-scenes assistance to a litigant who has filed pro
se , opposing counsel cannot be expected to be aware of the lawyer’s
involvement. In such a situation, opposing counsel acts reasonably in
proceeding as if the opposing party is not represented, at least until
Even if the lawyer has reason to know that the pro se litigant
is receiving some behind-the-scenes legal help, it would be unduly onerous
to place the burden on that lawyer to ascertain the scope and nature of
that involvement. We therefore believe that the most reasonable course
for an attorney dealing with a party who is proceeding pro se is
to treat the party as not having legal representation, unless and until
the party or a lawyer for the party provides reasonable notice that the
party has obtained legal representation.
The issue on which courts and ethics committees evaluating practices related to the unbundling of legal services have had the most difficulty agreeing concerns the extent to which lawyers must disclose their involvement when they have provided substantial assistance to a litigant in drafting documents that are to be filed in court. Some opinions have concluded that attorneys need not disclose their involvement in preparing court-filed documents;9 others have concluded that attorneys should disclose their involvement.10
After carefully examining the
D.C. Rules and opinions from various jurisdictions, we conclude that nothing
in the D.C. Rules of Professional Conduct requires attorneys who assist
pro se litigants in preparing court papers to place their names
on these documents or otherwise disclose their involvement. Attorneys
who provide limited-service assistance typically will not see the preparation
of documents through to the end and thus cannot control what is in the
final document filed by the pro se litigant. See ABA
Task Force at 75 (listing this and other concerns identified in a lawyer
focus-group study). Some opponents of the practice of "ghostwriting" court
documents, as it is frequently called, argue that the chief sin of this
practice is that it misleads the court into thinking a litigant is proceeding
without legal assistance and thus granting special solicitude to the litigant.
This, however, is an issue for the courts to identify if they perceive
a problem with the practice. Some jurisdictions have undertaken specific
rule modifications to address lawyers’ obligations in the context of providing
limited drafting assistance to otherwise pro se litigants,11
but, in the absence of any such directives in the D.C. Rules, we decline
to read into them an obligation concerning disclosure of limited assistance.
In sum, in our opinion the provision
of legal services through unbundled legal service arrangements is permissible
under D.C. Rule 1.2, provided the client is fully informed of the limits
on the scope of the representation and these limits do not prevent the
provision of competent service. The duties that generally attach to lawyer-client
relationships, including those of competence, diligence, loyalty, communication,
confidentiality and avoidance of conflicts of interest, apply to such
relationships. If a party is proceeding pro se , opposing counsel
should treat that party as unrepresented unless and until that counsel
receives reasonable notice of representation from the party or her lawyer.
Attorneys who provide substantial assistance in the preparation of documents
to be filed in court or other tribunal should check the rules of the relevant
forum to determine the extent of their disclosure obligations; the D.C.
Rules of Professional Conduct do not address this question.
Adopted: July 2005
Published: July 2005