Vol. 78, No. 2, February
2005
Ethics 2000:
Unbundling Legal Services
The controversy over the unbundling of legal services generally
focuses on whether a lawyer may properly limit the lawyer's
responsibilities of diligence, competence, and zealous representation of
a client by an agreement with the client that specifies the lawyer's
limited services.
by Timothy J. Pierce
Timothy J. Pierce, U.W. 1992, is
the State Bar ethics counsel and liaison to the Professional Ethics
Committee. This column was written in conjunction with Dean Dietrich of
the committee.
Question
I have heard a lot about unbundling legal services. What does it
mean?
Answer
There has been a lot of discussion about the unbundling of legal
services, especially as the legal profession and society try to address
the difficult problem of providing legal services to low-income people.
There is no precise definition of the unbundling of legal services; the
concept is a sharing between the lawyer and the client of responsibility
for the representation, with the lawyer doing some activities and
assuming responsibility for those activities and the client assuming
responsibility for other activities involved in the representation. For
example, the client may do the investigative work related to an
automobile accident or may contact witnesses directly to obtain
information to give to a lawyer. In other cases, the lawyer may assist
the client in preparing a complaint or the answer to a complaint but not
participate in the trial.
Several ethical questions arise when a lawyer provides legal services
in a limited fashion that results in the unbundling of the legal
services that a lawyer normally provides. Of paramount importance to the
lawyer is whether the lawyer will be held to the same level of diligence
and competence if providing only limited representation to a client
compared to an attorney who has full responsibility for the
representation. Several states' ethics opinions, in weighing full
diligence and competence issues, have held that a lawyer may not
unbundle legal services, even if the client wishes limited
representation.
Petition to amend Chapter 20. A number of new
changes to the Rules of Professional Conduct are being considered that
would affect the unbundling of legal services. The foremost development
is the petition to the Wisconsin Supreme Court to amend Chapter 20
resulting from the changes to the Model Rules of Professional Conduct
initiated by the American Bar Association and known as "Ethics 2000."
The proposed rule change to SCR 20:1.2 - Scope of Representation would
modify a current paragraph to read as follows:
"(c) A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client gives
informed consent."
The changes to the SCR 20:1.2 Comment provide further explanation of
the proposed change. The Comment reads in part:
"Agreements limiting scope of representation.
Court to Hold Public Hearing Feb. 17 on New Rules of Professional
Conduct
The Wisconsin Supreme Court will hold a public hearing on Feb. 17,
2005, to consider the Ethics 2000 petition. For more information on
Ethics 2000, please see these resources:
wisbar.org/newscenter
(reports on Board of Governors' consideration of the Ethics 2000
petition and related issues) Wisconsin
Lawyer online (coverage in December 2004), includes article on GAL
provisions and Supreme Court Order 04-07 setting the public hearing and
providing the petition; and November
2004, article on Wisconsin Supreme Court Ethics 2000 Committee's key
proposals)
"[6] The scope of services to be provided by a lawyer may be limited
by agreement with the client or by the terms under which the lawyer's
services are made available to the client. . . .
"[7] Although this Rule affords the lawyer and client substantial
latitude to limit the representation, the limitation must be reasonable
under the circumstances. . . .
"Although an agreement for a limited representation does not exempt a
lawyer from the duty to provide competent representation, the limitation
is a factor to be considered when determining the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the
representation."
Lawyers' role and responsibility during limited
representation. The State Bar Legal Services Committee has also
looked at the issue of unbundling of legal services and believes that
the proposed rule change identified above should be expanded to clarify
the role and responsibility of a lawyer during a limited representation.
The Legal Services Committee proposes the following changes to SCR
20:1.2 - Scope of Representation:
"(c) A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client gives
informed consent.
"(d) A lawyer who appears in court on a limited basis for a client
who is otherwise unrepresented must give written notice to the court and
all other parties of the tasks for which the lawyer is engaged and must
promptly notify the court and all other parties in writing of the
termination of the lawyer's appearance in the case upon the completion
of such tasks." (New language.)
Circumstances related to limited representation. The
committee also proposed additional language to the Comment to SCR 20:1.2
to further clarify the circumstances under which the provision of
limited representation is permissible:
"Although this Rule affords the lawyer and client substantial
latitude to limit the representation, the limitation must be reasonable
under the circumstances. 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 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.
"A lawyer and client may agree that the representation will be
limited to providing assistance out of court, including providing advice
on the operation of the court system and drafting pleadings and
responses. If the lawyer assists a pro se litigant by drafting any
document to be submitted to a court, the client is not obligated to
reveal the identity of the lawyer and the lawyer is not obligated to
sign the document. However, to avoid the impression that the litigant is
acting without the assistance of counsel, such a document must state
that it was prepared with the assistance of counsel.
"A lawyer and client may agree that the lawyer will represent the
client in court at a single hearing or trial, or during proceedings
regarding a discreet issue in the litigation. For example, a lawyer and
client may agree that the lawyer will represent the client in court at a
hearing regarding child support and not in any other hearings. The
lawyer shall communicate to the client the specific boundaries and
limitations of the representation so that the client is able to give
informed consent to the representation. If the attorney and client agree
to limit the scope of the representation, the lawyer shall advise the
client, as provided in SCR 20:4.2, that another lawyer is not barred
from communicating directly with the client about subjects outside the
scope of the limited representation."
Communication with represented person. The Legal
Services Committee also proposes a change to SCR 20:4.2 regarding
"communication with person represented by counsel" to clarify the way
that communication should be handled when a lawyer is involved in
providing limited representation to a client. The additional language
proposed by the Committee in SCR 20:4.2 is:
"(b) A lawyer shall not communicate with a party the lawyer knows to
be represented under a limited representation agreement in accordance
with SCR 20:1.2 about the subject matter of the limited representation,
but it does not bar communication about matters outside the limited
scope of representation."
The concept of the unbundling of legal services is still
controversial even though many lawyers actively involve their clients in
performing activities directly related to representation of the clients.
The controversy over the unbundling of legal services generally focuses
on whether a lawyer may properly limit the lawyer's duties and
responsibilities of diligence, competence, and zealous representation of
a client by an agreement with the client that the lawyer will only
perform limited services as part of the representation. Many
jurisdictions suggest that the unbundling of legal services does not and
may not limit the duties the lawyer owes to the client to provide the
highest level of representation.
As the debate on the need to provide legal services to low-income
people continues to rage, it is likely that the bar will see greater
clarification of the roles and responsibilities of lawyers when
providing limited representation by agreement to a client. The Wisconsin
Supreme Court may provide further guidance to Wisconsin lawyers as it
considers the petition to revise the various rules in Chapter 20 of the
Supreme Court Rules.
Opinions and advice of the Professional Ethics
Committee, its members, and assistants are issued pursuant to State Bar
Bylaws, Article IV, Section 5. Opinions and advice are limited to the
facts presented, are advisory only, and are not binding on any court,
the Office of Lawyer Regulation, or State Bar members. Attorneys with
questions on professional ethics issues may contact the Ethics Hotline
at (800) 444-9404, ext. 6168; or (608) 250-6168 (all day Wednesday); and
(608) 629-5721 on Monday, Tuesday, Thursday, and Friday mornings. Send
written requests for Professional Ethics Committee opinions to the
Professional Ethics Committee, c/o Timothy Pierce, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.
Wisconsin Lawyer