Bar to study the need for unbundled legal services June 1, 2001 Regular News Bar to study the need for unbundled legal services Mark D. Killian Associate Editor Facing an ever-increasing number of pro se litigants in family courts, the Supreme Court has asked the Bar to study the possible need for “unbundled legal services.” If the committee finds the need exists for unbundled legal services, Chief Justice Major B. Harding, in an administrative order, asked the Bar to submit a proposed rule amendment to facilitate the use of such services no later than March 1, 2001. “This is a very significant committee that will be investigating an important subject to most attorneys,” said Bar President Edith Osman, noting any changes could have a profound impact on lawyers who bill by the hour. The unbundling of legal services — also sometimes known as discrete task representation — would allow the client to select which activities will be performed by the lawyer and which will be performed by the client, if they are performed at all. The client may also specify the extent of each service the lawyer is to perform. Osman said the study committee also must investigate how unbundled legal services might transcend family law or if it can be limited to family practice. That, she said, is why she intends to appoint lawyers who practice in the areas of real property and commercial litigation as well as members of the family bar to the study committee. “The purpose of unbundling legal service is to provide greater access to the legal system to more people,” Osman said. “For example, middle class clients could obtain a lawyer for just those parts of a case they are concerned about.” Family Law Section Chair Ky Koch said limited representation in a divorce case could be as simple as helping decide who gets to keep the cat or as complex as handling child custody matters while the couple works out the financial split, or the lawyer drafts a qualified domestic relations order and the divorcing couple handles the of rest the case. Looking into unbundled services responds to the proliferation of pro se litigants in family cases, particularly divorce, and the Bar needs to consider unbundled legal services to accommodate the needs of people who use the system, Koch said. “Pro se litigants are a majority of our customers in the divorce arena and we have to be responsive to them,” Koch said. “What we have been faced with is how do we respond to that need, both to the people who don’t have lawyers and to make sure that legal rights and representation are provided when needed.” Looking at the pro se problems is a balancing act, he said. “We can’t go into this with the sole perspective of protecting lawyers’ pocketbooks, but we have got to also recognize that things are changing within the family law division and we have to meet those needs,” Koch said. As it now stands, Koch said, providing limited representation is not precluded by Bar rules, “it is simply that there are all kinds of problems related to it.” Is it ethical for a lawyer to involve himself or herself only in a limited portion of a case? From a legal malpractice perspective, what is the response from the insurance carrier about limited representation? Will judges permit lawyers to take part in one aspect of a case and not another? “Most judges take the position, and I think reasonably so, that if you are on this case, you are on this case,” Koch said. “It is not like you are kind of pregnant — you are either on or off.” Bar Ethics Counsel Elizabeth Tarbert said the Supreme Court has generally declined to adopt rules that apply only to lawyers in a specific practice area. In 1969, Tarbert said, the court rejected a rule intended to govern the conduct of in-house counsel for insurance companies. More recently, Tarbert said, the court declined to adopt a rule that would address the conduct of family law practitioners. “Specifically, the court said `the petitioners have not demonstrated that there is a need to treat those members of the Bar who practice family law differently than other members of the Bar,’” Tarbert said, citing Amendment to Rules Regulating the Florida Bar — Rule 4-1.18, Client-Lawyer Relationships in Family Law Matters, 662 So. 2d 1246 (Fla. 1995). Tarbert said the Professional Ethics Committee has followed the court’s general precept. As an example, the panel published Florida Ethics Opinion 90-4, which indicated the rule prohibiting communication with represented persons applies to Department of Justice attorneys when the DOJ argued otherwise. “Florida was at the vanguard of states that declared that DOJ attorneys could not just try to exempt themselves from state rules,” Tarbert said. Tarbert said there is now only one rule approved by the Supreme Court which specifically addresses one type of practitioner — Rule 4-3.8, Special Responsibilities of a Prosecutor, which deals with the conduct of prosecutors in criminal cases. Colorado’s new limited representation rules went into effect last July. “Colorado lawyers and judges supported the idea that some lawyer help to pro se parties is better than none,” Colorado Supreme Court Chief Justice Mary Mullarkey told that state’s Judicial Conference last year. “The rules are meant to achieve candor to the court and to allow citizens to obtain legal services without having to hire an attorney for the entire litigation or go without.” The rules require a pro se party to disclose on the pleading the name of the attorney who assisted in drafting the pleading. An attorney must advise the pro se party of that requirement and also to explain the risk involved in obtaining limited representation in contrast to full representation in litigation. Under the revised civil rules, limited representation by an attorney does not constitute an entry of appearance, and the court and opposing parties are not required to serve the assisting attorney. The Colorado rules also provide: “Whether these rules will function as intended depends on the willingness of bench and bar to have them work,” Justice Mullarkey said. Koch noted Arizona also has similar unbundled legal services rules; however, it is difficult to compare the Arizona and Colorado experiences to Florida because Arizona’s rules differ sharply from Florida’s, and Colorado’s rules have been in place for less than two years. “In Arizona when pro se litigants come in, they have people at a desk that answer questions, and if there is a feature of their case these pro se litigants need assistance with they have a list of lawyers who will assist them — on an unbundled basis — as to particular topics,” Koch said, noting, too, that Arizona has no UPL rules. Anyone interested in serving on the committee or providing comments to the panel may contact The Florida Bar, Office of the Executive Director, 651 E. Jefferson Street, Tallahassee 32399-2300. The attorney/client privilege applies to limited representation as it does to full representation under the ethical rules. The appearance of the attorney’s name on the pro se pleading is not the occasion for other parties or the court to question the assisting attorney regarding the case or the actions of the pro se party. The rules do not contemplate the opposing party questioning the pro se party about the preparation of the pleading or inquiring into or discovering the attorney’s versus the client’s own drafts of the pleading. If the matter of sanctions should arise because the client did not disclose the name of the attorney, or the attorney did not advise the client to make the disclosure, the matter should be handled by the court apart from the merits of the pro se party’s case and include confidential in-camera treatment of papers, conversations or other matters that implicate the attorney/client privilege.