Real Life Legal: Opposing Counsel Throw Up Barriers to Unbundled Services

(Note – I spoke too soon in my earlier post – but I had to get this off my chest!)

This past February 2013, the ABA passed this Resolution to encourage practitioners  (presumably solos and pre-paid providers, since those committees co-sponsored the resolution) to provide unbundled legal services.  No doubt, most ardent proponents of unbundled legal services are skeptical; assuming that we big, bad, turf-guarding legal rent-seekers will simply to dig in our heels and refuse to provide anything less than full-service.

Unfortunately, the matter of unbundled legal services isn’t as black and white as its proponents would claim.  I’ve searched for ways to offer unbundled services that go beyond just reviewing a contract or form, and it’s not an easy road.  I have high ethical standards to begin with, and it’s difficult for me to let go and handle a small piece of a matter while ignoring other issues. But the greater obstacle that I’ve encountered recently in trying to provide unbundled legal services in the regulatory context isn’t just me being a lawyer – but rather, opposing counsel.

Take for example a regulatory matter that came up a few months back where I offered to assist to fairly sophisticated citizen-intervenors on an unbundled basis. The litigants had already, on their own over a two year period, succeeded in obtaining a hearing on several issues involving a major utility (no easy feat). The regulatory commission subsequently sent the matter to a mandatory settlement proceeding before an administrative law judge. Having dealt with the company directly before, the litigants were comfortable holding their own but sought my assistance to help draft a settlement proposal and review and potentially modify settlement offers.

Sounds like an ideal situation for unbundled services, right? Except of course for real life.  Because settlement proceedings are confidential (both the contents of the communications and specific information), the litigants and I believed it was appropriate to disclose my limited participation. Opposing counsel objected, arguing that unless I entered an appearance, the litigants could not discuss settlement.  I did not want to enter an appearance, however, because once I did, the litigants would become “represented parties” and all communications with opposing counsel, not to mention with the judge, would be required to go through me.  As a result, what might have been 5-8 hours of work (to review and revise settlement drafts) would balloon into at least two to three times as much work – more than I was willing to accept for a limited fee and frankly, more than the litigants needed or could afford.   Yet despite my candor in disclosure, my willingness to sign an NDA and my clients’ limited funds, the judge agreed and refused to allow my clients to share the settlement proposals with me unless I entered an appearance. As a result, they moved forward pro se.

In another case a few years back involving eminent domain proceedings arising out of a regulatory process, I agreed to write a letter on behalf of a group of clients to dispute several assertions by the opposing company. Even though I made clear in the letter that I was assisting with a single, discrete matter and even though the clients had an ongoing relationship with several company agents and lawyers, the company and counsel were reluctant to deal with the clients directly thereafter. As a result, I was unexpectedly dragged into the case – and ate a significant portion of my quoted fee.

Unfortunately, unbundled service advocates are so eager to painting lawyers reluctant to provide unbundled services as bad guys that they don’t address the very real obstacles to limited scope agreements that real practicing lawyers face. What’s the solution?

For starters, ethics rules that ban communications between opposing counsel and represented litigants would need to be modified. For example, the rules could state that a litigant is not considered represented for purposes of the bar on direct communications when his or her lawyer provides unbundled services. Alternatively, the rules could require opposing counsel to deal directly with a litigant who presents a letter from unbundled counsel expressly authorizing communication.

Without these modifications, opposing counsel will use the ban on direct communications as a way to force litigants of limited means to either pay full fare for services that they don’t want or need, or proceed unrepresented. While there’s a risk to allowing opposing counsel to directly access clients (and I’d never endorse eliminating this rule – though not sure how it will apply with non-lawyer providers), preventing clients from voluntarily agreeing to a partial waiver on the ban is also harmful because as a practical matter, it limits  ability to access unbundled legal services.

There’s no question that access to law remains a problem for clients low and middle-income clients. But when lawyers who actually want to do the right thing can’t, shouldn’t we come up with ways to fix the problem rather than try to get rid of lawyers altogether?