My Shingle

I Can Unbundle The Case, But I Can’t Unbundle My Heart

by Carolyn Elefant on February 22, 2010 · 10 comments

in Business Models, Client Relations, Client Service

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I want to wholeheartedly embrace the concept of unbundled legal services, I really do.  After all, what’s not to like?  The demand for affordable legal services is greater than ever.  With courthouses overrun by pro se litigants, even judges are pressing for unbundled legal services.  Technology is empowering a generation of educated, sophisticated consumers who actually want to take on increased responsibility for legal affairs.  And finally, given that companies like Legal Zoom, which aren’t even lawyers, are providing unbundled legal services through forms, lawyers should surely have the ability to compete and offer the same services as well.

And yet, much as I support unbundled legal services in theory (as well as in certain finite matters like a will or corporate document), I’m not so sure that I could deliver unbundled services in practice without losing a bundle myself.  Because if an issue came up in the course of a case that was beyond the scope of my agreement but nonetheless critical, I’d probably take wind up taking it on, whether or not ethics rules or malpractice considerations compelled me to do so.

Case in point.  Last summer, I volunteered to take on a foreclosure case as part of Maryland’s pro bono foreclosure defense program.  The case assigned to me wasn’t yet in active foreclosure, and I was told that all that I’d have to do was negotiate a loan modification for the client.  And thus, my pro bono retainer provided that I’d assist with renegotiation.  Nothing else.

Except…neither the law in general nor the law of foreclosure specifically is equally clean and neat.  What I didn’t realize at the time I accepted the pro bono case was that only a scant percentage of loan modifications are ever granted permanently.   And that the waiting period between a trial modification and permanent modification could extend for months, during which time the lender can reactivate its foreclosure action.

That’s precisely what happened in my pro bono case.  After a couple of hours work gathering information from the client and filling out forms, I secured a trial loan modification for the client.  Then,  while waiting for a decision on a permanent modification, the lender initiated foreclosure proceedings.  Not surprisingly, the foreclosure action was defective both procedurally (non-compliance with Maryland’s rules and HAMP guidelines) and on jurisdictional grounds (both the Trustee, acting on behalf of the putative lender, and the lender itself lacked standing).

Even though foreclosure defense wasn’t part of my agreement with the client, I couldn’t ignore the foreclosure action.  So I called opposing counsel and asked for a dismissal.  OC admitted that the case was prematurely filed, but wouldn’t dismiss outright.  Instead, he said that he’d put the case on hold.  Technically, a hold would solve my client’s problem because it would allow the modification proceeding to run its course.   If the lender granted a permanent modification, the foreclosure suit would go away.

Trouble is, the hold wouldn’t toll the time for my client to file a response and raise objections.  And if the lender turned down the requested modification, my client would need those defenses as leverage.  And by that time, my client’s objections would be deemed waived.  So even though my retainer didn’t require me to represent my client in a foreclosure action in court and even though I’d come up with what some might view as an acceptable band-aid  (put the case on hold), neither of these approaches in my view satisfied my obligation as a lawyer to provide zealous representation to my client.  So after about 20 hours of research and dissecting all the transactions (remember, I’m a novice at all of this plus a bit of a research nerd), I filed a motion to dismiss, and I’ll be in court next month to argue it.

Right after I’d extinguished that fire, my client sent me paperwork on another matter.  Turned out that he’d owed some debts and worked out an agreement with a debt consolidation company to make the repayments.  The debt consolidation company stopped making the payments, and the creditor filed a writ of garnishment.  Now clearly, this issue fell outside the scope of the foreclosure matter, right?  Well, not exactly.

If my client’s wages were garnished, he’d no longer be able to continue to make the monthly payments necessary to keep his trial modification.  As such, he’d be disqualified for consideration for a permanent modification – which was what I’d originally been tasked to achieve.  So in order to preserve my client’s ability to get the modification, I needed to address the garnishment issue, even if technically, it was unrelated to the foreclosure matter.

In addition, as with the foreclosure papers, the garnishment action was rife with error.  It identified the wrong garnishee, the wrong amount due on the judgment and the wrong creditor, for heavens’ sakes.  Now if this had been an unbundled situation, I could have whipped out a motion to dismiss and given it to my client to sign and file.  But I knew that filing a motion to dismiss wouldn’t help in the short term, because the employer is obligated to withhold wages once the writ is filed.  So if the motion to dismiss took a month to resolve, my client wouldn’t get his check, thus jeopardizing his foreclosure payments.

As an attorney, I could call the other side and try to force a dismissal, then offer to renegotiate payments.  But my client would not have the same leverage.  And even as an attorney, getting the writ dismissed involved a set of emails to the opposing counsel that bordered on stalker-ish (since I wasn’t getting a response), two phone calls and a draft motion (since I hadn’t heard and figured that I’d have to file a dismissal after all).  But just a few hours ago, I learned that the garnishment action will be dismissed and that we’ll reinstate a payment plan similar to the one that my client had with the consolidation company.

In my lawyer’s mind, I can neatly dissect all of the separate elements of my client’s foreclosure proceeding: the loan renegotiation, the foreclosure case in court, the garnishment.  With my lawyer’s hand, I could draft a wicked retainer letter that isolates each element and specifies those which I’ll handle and those which I won’t.

Yet even though I can unbundle the case, separate it into tiny, manageable pieces, I can’t unbundle my heart.  I simply can’t abandon a client because my original, limited agreement didn’t contemplate the emergence of damaging tangential issues or adopt a second rate approach that won’t solve my client’s problem simply because I haven’t been paid to do more. Though I don’t advocate an over the top, scorched earth strategy in every case and I’ll concede that some finite matters – incorporation, leases, wills and such – can readily be unbundled and automated, I’m not so sure how well ongoing matters like foreclosure, collection, immigration or criminal cases, particularly those involving less sophisticated clients translate to the unbundled model.

Indeed, perhaps that’s what judges are counting on when they advocate for unbundled legal services:  that lawyers’ sense of compassion or ethics or professionalism will convince them to stay in a case even if it’s not necessarily what they signed up for.   In fact, it just may be that unbundling doesn’t give lawyers an out so much as it inextricably binds them — either by judicial fiat or personal conscience  –  to a case that they never intended to see all the way through.

  • Debbie Eberts

    Unbundling is one of those great ideas on paper, but very difficult to execute in the real world.

  • Debbie Eberts

    Unbundling is one of those great ideas on paper, but very difficult to execute in the real world.

  • http://www.keepyourfloridahome.com Richard Carey

    This is a wonderful post that truly highlights the issues with unbundled services and handling foreclosure cases on a pro bono basis. Foreclosure cases can quickly spiral out of control affecting different aspects of your client’s lives thus turning your few hour pro bono case into a full time job. As a Florida Foreclosure Defense attorney I see too often how the foreclosure process leaves clients at the mercy of the Courts. Although I handle several pro bono foreclosure cases, the amount of work and energy that goes into raising a valid foreclosure defense is truly taxing and cannot be done in an expedient manner as each case has its own unique issues. I wish you the best in your pursuit to resolve your client’s case.

  • http://www.keepyourfloridahome.com Richard Carey

    This is a wonderful post that truly highlights the issues with unbundled services and handling foreclosure cases on a pro bono basis. Foreclosure cases can quickly spiral out of control affecting different aspects of your client’s lives thus turning your few hour pro bono case into a full time job. As a Florida Foreclosure Defense attorney I see too often how the foreclosure process leaves clients at the mercy of the Courts. Although I handle several pro bono foreclosure cases, the amount of work and energy that goes into raising a valid foreclosure defense is truly taxing and cannot be done in an expedient manner as each case has its own unique issues. I wish you the best in your pursuit to resolve your client’s case.

  • http://www.virtuallawpractice.org Stephanie Kimbro

    Unbundling legal services can be difficult when the practice areas are not more transaction based. However, I have had instances come up like this in my own practice when unbundling legal services for small business clients. Often the issue comes up after the engagement clickwrap agreement has been signed. Neither myself nor the client could have foreseen the scope of representation needing to change.
    In those cases and where I feel the need to handle this new aspect of the case for my client rather than referring them away, I will go through that engagement process again and redefine the scope of my representation for the project. The client is then provided with additional information about my services, how much this new aspect of the case will cost and how he or she will be billed for it, and then they click to accept the new terms of our relationship.
    In some cases, the terms may change from a fixed fee unbundled project to a billable hour project depending on the scope of what needs to be handled. So I guess I don’t think unbundling has to be so black & white and can be kept flexible to changes in clients’ legal needs. The key from a malpractice standpoint is getting the client to understand and agree to the changes in the relationship and keeping a good record of that for your law practice.

  • http://www.virtuallawpractice.org Stephanie Kimbro

    Unbundling legal services can be difficult when the practice areas are not more transaction based. However, I have had instances come up like this in my own practice when unbundling legal services for small business clients. Often the issue comes up after the engagement clickwrap agreement has been signed. Neither myself nor the client could have foreseen the scope of representation needing to change.
    In those cases and where I feel the need to handle this new aspect of the case for my client rather than referring them away, I will go through that engagement process again and redefine the scope of my representation for the project. The client is then provided with additional information about my services, how much this new aspect of the case will cost and how he or she will be billed for it, and then they click to accept the new terms of our relationship.
    In some cases, the terms may change from a fixed fee unbundled project to a billable hour project depending on the scope of what needs to be handled. So I guess I don’t think unbundling has to be so black & white and can be kept flexible to changes in clients’ legal needs. The key from a malpractice standpoint is getting the client to understand and agree to the changes in the relationship and keeping a good record of that for your law practice.

  • http://www.adamskylaw.com Edward Adamsky

    We could solve the health care crisis with unbundled Medical services. I’ll diagnose myself, I just need the doctor to call in the prescription to the pharmacy, how much is that? If I need surgery, I’ll do all the prep-work, I just need the surgeon to do the actual operation, he doesn’t need xrays or anything that I don’t want to pay for; that will save a lot. Unbundled services, how can it go wrong?

  • http://www.adamskylaw.com Edward Adamsky

    We could solve the health care crisis with unbundled Medical services. I’ll diagnose myself, I just need the doctor to call in the prescription to the pharmacy, how much is that? If I need surgery, I’ll do all the prep-work, I just need the surgeon to do the actual operation, he doesn’t need xrays or anything that I don’t want to pay for; that will save a lot. Unbundled services, how can it go wrong?

  • http://www.directlaw.com Richard Granat

    Carolyn’s situation is a good example of the limits of “unbundling.” The concept works best in the context of clearly defined transactions which are uncontested. It gets messy when the conflict is hotly contested, where they are many interrelated issues, and when the tasks that the client wants to undertake are beyond the client’s competence. Carolyn’s response to engage the client beyond the original scope of representation out of necessity and compassion is the kind of response that defines the practice of law as a “profession”, and not just as another service business. We need to have more lawyers like Carolyn Elefant.

  • http://www.directlaw.com Richard Granat

    Carolyn’s situation is a good example of the limits of “unbundling.” The concept works best in the context of clearly defined transactions which are uncontested. It gets messy when the conflict is hotly contested, where they are many interrelated issues, and when the tasks that the client wants to undertake are beyond the client’s competence. Carolyn’s response to engage the client beyond the original scope of representation out of necessity and compassion is the kind of response that defines the practice of law as a “profession”, and not just as another service business. We need to have more lawyers like Carolyn Elefant.

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