Ethics Opinion 330: Unbundling Legal Services

Opinion 330

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.

Applicable Rules

Rule 1.1 (Competence)
Rule 1.2 (Scope of Representation)
Rule 1.3 (Diligence and Zeal)
Rule 1.4 (Communication)
Rule 1.6 (Confidentiality)
Rule 1.7, 1.9 (Rules on Conflict of Interest)
Rule 3.3 (Candor toward the Tribunal)
Rule 4.2 (Communication between Lawyer and Opposing Parties)
Rule 4.3 (Dealing with Unrepresented Person)

Inquiry

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.

Discussion

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. Id.

Competence

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 [2] ("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 [6] gives the following explanatory example:

If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.

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

Also important is the client’s understanding of the scope of the services to be provided under an unbundling arrangement. Because the tasks excluded from a limited services agreement will typically fall to the client to perform or not get done at all, it is essential that clients clearly understand the division of responsibilities under a limited representation agreement. The D.C. Rules generally require only a written statement of the basis of an attorney’s fee, but not individualized written retainers or representation agreements. See D.C. Rule 1.5(b) & comment [2]. Particularly in the context of limited-representation agreements, however, a writing clearly explaining what is and is not encompassed within the agreement to provide services will be helpful in ensuring the parties’ mutual understanding. See D.C. Ethics Op. 238 (1993) (requiring attorney to state in writing how additional consultation time would be charged to a client).

Conflicts of Interest

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).

Communication with Opposing Party

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 informed otherwise.8 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.

Disclosure of Involvement

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

[Return to text] One leading proponent has explained unbundling as follows:

[L]awyers generally offer a full service package of discrete tasks that encompass traditional legal representation. More specifically, the lawyer implicitly or explicitly undertakes the following services on behalf of a client: (1) gathering facts, (2) advising the client, (3) discovering facts of the opposing party, (4) researching the law, (5) drafting correspondence and documents, (6) negotiating, and (7) representing the client in court.

When a client hires a lawyer, generally both client and lawyer assume that the lawyer will perform these services in a full-service package. . . . Unbundling these various services means that the client can be in charge of selecting from lawyers’ services only a portion of the full package and contracting with the lawyer accordingly.

Forrest S. Mosten, "Unbundling of Legal Services and the Family Lawyer," 28 Fam. L. Q. 421 (1994). A recent symposium also considers the ethical issues involved in unbundling arrangements. See Symposium Issue, The Professional Lawyer , 2004, at 59-106.

[Return to text] A sampling of such opinions includes Lerner v. Laufer, 359 N.J. Super. 201, 217, 819 A.2d 471, 482 (N.J. Super. Ct. App. Div. 2003) ("the law has never foreclosed the right of competent, informed citizens to resolve their own disputes in whatever way may suit them"); Alaska Bar Assoc. Ethics Op. No. 93-1 (May 25, 1993) (lawyer may ethically limit the scope of his representation but must notify client clearly of the limitations on the representation and the potential risks the client is taking by not having full representation); Arizona State Bar Assoc. Ethics Op. No. 91-03, at 4 (Jan. 15, 1991) (lawyer may agree to represent a client on a limited basis as long as the client consents after consultation and representation is not so limited in scope as to violate ethics rules); ABA Informal Op. 1414 (June 6, 1978) (lawyer may give advice and assist in the preparation of pleadings for litigants who are otherwise proceeding pro se ).
[Return to text] See, e.g ., Colo. Bar Ass’n Ethics Comm., Formal Op. 101, at 2 (Jan. 17, 1998) (noting examples of "commonplace and traditional" arrangements under which clients ask their lawyers "to provide discrete legal services, rather than handle all aspects of the total project").
[Return to text] See, e.g ., Colo. Bar Ass’n Ethics Comm., Formal Op. 101, at 2 (Jan. 17, 1998) (noting examples of "commonplace and traditional" arrangements under which clients ask their lawyers "to provide discrete legal services, rather than handle all aspects of the total project").
[Return to text] See also ABA Task Force, at 25 ("although representation may be limited to an interview and advice, the interview must be at least as thorough as full-service representation").
[Return to text] See also New York City Bar Ass’n Op. 2005-01 ("lawyer should independently evaluate whether the complexities of the case or the limitations of the client make it unlikely that the client could effectively proceed pro se").
[Return to text] We also note that under a currently proposed revision to D.C. Rule 6.5, D.C. Rules 1.7 and 1.9 will apply to lawyers who provide "short-term limited legal services" to a client "under the auspices of a program sponsored by a nonprofit organization or court" only if "the lawyer knows that the representation of the client involves a conflict of interest," and D.C. Rule 1.10 will apply "only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9 with respect to the matter." See District of Columbia Bar Rules of Professional Conduct Review Committee, Proposed Amendments to the District of Columbia Rules of Professional Conduct: Report and Recommendations 179 (Jan. 31, 2005).
[Return to text] Some jurisdictions have modified their rules in order to more directly address the issue of attorney communication with a party receiving limited legal assistance. See, e.g. , Colo. RPC 4.2 comment ("a pro se party to whom limited representation has been provided . . . is considered to be unrepresented for purposes of this Rule unless the lawyer has knowledge to the contrary"); Colo. RPC 4.3 comment (" pro se parties to whom limited representation has been provided . . . are considered to be unrepresented for purposes of this Rule"); Me. Bar. R. 3.6 (f) (party being provided with limited representation "is considered to be unrepresented" except to extent the limited-representation attorney provides written notice to opposing counsel of the time period in which counsel should communicate only with the limited-representation attorney); Wash. RPC 4.2 (b); 4.3 (b) (similar to Maine).
[Return to text] See, e.g. , Los Angeles County Bar Ass’n Ethics Op. 502 (1999) (attorneys assisting pro se litigants need not disclose their involvement); Professional Ethics Commission, Op. No. 89 (2003) (attorney did not act unethically in drafting complaint for litigant to file and proceed with pro se).
[Return to text] See, e.g. , Duran v. Carris, 238 F.3d 1268 (10 th Cir. 2001) (participation by attorney in drafting pro se appellate brief must be acknowledged by signature); Lerner, supra , 819 A.2d at 483 n.2 (suggesting that "any party’s consent to limit the attorney’s scope of representation . . . should be fully disclosed to the court"); Ricotta v. State, 4 F. Supp.2d 961, 986-88 (S.D. Calif. 1998) (failure of attorney to reveal her extensive role in drafting pro se litigant’s lengthy oppositions to defendants’ motions to dismiss was improper, but court would not hold counsel in contempt because rules of professional conduct and court rules failed to provide clear guidance); New York State Bar Ethics Op. 613, at 5 (April 1990) (lawyer who assists pro se litigant in preparation of documents to be filed in court must disclose her name); Del. Bar Ass’n Ethics Op. 1994-2, at 2 (May 6, 1994) (if an organization prepares documents other than initial pleadings, the extent of the organization’s participation should be disclosed by means of a letter to opposing counsel and the court); Kentucky Bar Assoc., Ethics Op. E-343 (Jan. 1991) (counsel may limit representation of a pro se litigant to preparation of initial pleadings, and "the better and majority view appears to be that counsel’s name should appear somewhere on the pleading").
[Return to text] The State of Washington, for example, has adopted rules that authorize lawyers to help otherwise self-represented persons to draft pleadings, motions and documents to be filed in court and to rely on the otherwise self-represented person’s representation of facts "unless the attorney has reason to believe that such representations are false or materially insufficient." Wash. Super. Ct. R. 11(b). Colorado requires attorneys to "advise the pro se party that a pleading or paper for which the attorney has provided drafting assistance must include the attorney’s name, address, telephone number and registration number," but provides that this disclosure does not "constitute entry of appearance by the attorney." Colo. R. Civ. P. 11(b).