Helping Self-Helpers
The notion that a lawyer may work on only part of a case while the client goes it alone on the rest is no longer new, but it is still novel.
Proponents say “unbundling”—in which the lawyer contracts to perform specific, limited work for the client without taking on responsibility for the entire case—is drawing increased attention. The same goes for assisted pro se representation, in which a lawyer helps an individual prepare to go into court on his or her own behalf, they say.
Generally, state rules governing ethics and court procedure are silent on these approaches, and lawyers have pretty much operated under the radar in applying them.
But since 2000, six states have formally adopted various changes in their ethics codes or civil procedure rules to accommodate unbundling and assisted pro se representation. (The states are California, Colorado, Florida, Maine, Washington and Wyoming). And at least 11 other states have begun to study the issue actively, according to unbundling pioneer Forrest “Woody” Mosten, an attorney and mediator in Los Angeles.
As state policymakers and regulators show more interest in giving formal recognition to limited representation approaches, the ABA Standing Committee on the Delivery of Legal Services is taking steps to help them learn more about the concept.
“The delivery committee champions affordable access to justice for people of modest means,” says its chair, Lora J. Livingston, a Texas district court judge in Austin. “Unbundling is an important part of this. We encourage the states to assess the potential for unbundling in their strategies to provide comprehensive access to legal services.”
As part of this effort, the committee has launched a new informational Web site for state policymakers.
The online Pro Se/Unbundling Resource Center contains links to books, articles, reports, 12 cases, 36 ethics opinions, pro se projects and 29 state and local self-service centers that deal with limited representation approaches. The Web site also links to court rules in the states that expressly authorize unbundling. The site is at www.abanet.org/legalservices/delivery/delunbund.html.
LEARNING FROM EXPERIENCE
“The center is designed to help policymakers and focuses on policy research,” says Livingston. “It’s so much easier to get information from somebody who has already examined the issues as opposed to starting from scratch.”
Many of the ethics opinions say that lawyers may engage in limited representation provided that the client consents after being informed of the potential risks, says William E. Hornsby Jr. of Chicago, who is staff counsel to the delivery committee. Many of the opinions also agree that an attorney-client relationship still exists when legal services are provided on a limited basis and caution that the relationship may not be restricted in a way that causes the lawyer to violate any ethics rules, he says.
One of the Web site’s links is to the Handbook on Limited Scope Legal Assistance, issued in 2003 by the ABA Section of Litigation. The handbook covers such topics as the formation and termination of a limited scope relationship, the performance of discrete tasks, and the ethics issues and procedural rules involved in this legal services delivery method.
While the handbook recommends allowing lawyers to help pro se litigants prepare court documents without requiring that such assistance be disclosed, some judges have concluded that ghostwritten pleadings perpetrate a fraud on the court and give those litigants an unfair advantage over other pro se petitioners who didn’t have a lawyer’s help, Hornsby says.
Mosten, a former member of the delivery committee, says he is encouraged that the ABA has taken a leadership role in improving access to information on unbundling. “The ABA has really been front and center on the issue,” he says.
