Also known as limited scope legal services and refers to a situation where a lawyer performs one or more discrete tasks for a client, while the client handles other matters that, in a traditional full service retainer, would form part of the services the lawyer would provide.1
The unbundling of legal services, is often referred to by lawyers and bar associations or law societies as, simply, unbundling or, to professional lawyer organizations, a limited scope retainer. In the traditional lawyer-client relationship, a lawyer provides full service to his or her client from the initial meeting on: strategic planning, plan implementation, drafting of letters or pleadings and representation in court. Unbundling refers to the unraveling of those services and the hiring of one or more lawyers for either each part or for one or some parts only, the client managing the other parts by him/herself.
Rather than paying an hourly rate usually in excess of $200 an hour to a lawyer to proceed with all aspects a legal dispute, a prospective client could purchase individual services. The lawyer offers to his or her prospective client, separate pieces of legal representation or specialized work and does not require that the client buy the whole bundle, all or nothing.
Ms Fisher-Brandveen and Klempner describe the concept as follows:
"Unbundled legal services is a practice in which the lawyer and client agree that the lawyer will provide some, but not all, of the work involved in traditional full service representation. Clients choose the legal assistance according to their needs and perform the remaining tasks on their own.
"Unbundling has been described as ordering a la carte, rather than from the full-service menu. A client might hire a lawyer for trial representation, but not for court filings, discovery, and negotiations. Unbundled services can take many forms, including telephone, Internet, or in-person advice; assisting clients in negotiations and litigation; assistance with discovery; or limited court appearances. For many clients, these limited engagements make a lawyer's services affordable."
Four of the more popular unbundled services are as follows:
- Ghost-writing (see Legal Definition of Ghostwriting) - the lawyer ghost-writes cease and desist letters, demand letters or pleadings or even written submissions, but is not identified as the author nor appears on the court or tribunal record as lawyer of record for the litigant or client.
- Coaching - in which a lawyer communicates with the client at the client's discretion and request to guide the client through the legal process including ghost-writing from time to time, and advice as to responses to pleadings, demands from either the Court, the Court registry or a lawyer formally representing the other side to a dispute; and
- Litigation services - representation of the client before a Court or tribunal only, with preliminary work done by the client either directly or with the assistance of some other lawyers as regards other varieties of unbundled legal services as set out above. In this form of unbundled legal service, the lawyer will often file a formal notice that she or he is acting on behalf of the client and once the service is rendered, will file the client's pre-signed notice of intention to act in person, to be off the record, provided this has been agreed-upon with the client ahead of time. In this way, the lawyer comes in, does the single job, and then gets out.
Generally, the fact of a limited scope retainer, aka an unbundled legal service, does not detract from the professional obligations of the lawyer such as competency, confidentiality, ethics and the avoidance of conflicts of interests.
Often, there are impediments to the unbundling of legal services that must be considered (the more obvious of the issues arising from the unbundling of legal services are discussed in the Legal Definition of Ghostwriting). For example, a common rule of professional conduct:
A lawyer who acts for a client only in a limited capacity must promptly disclose the limited retainer to the court and to any other interested person in the proceeding, if failure to disclose would mislead the court or that other person.
This vague rule would quite naturally discourage the participation of a lawyer in an unbundled legal service contract. In any event that a lawyer is or becomes aware that a court is being misled by any retainer, that lawyer ought to withdraw or disclose.
In some instances, the unbundling, though with the best of intentions, can hinder rather than facilitate justice. Consider the situation set out by Justice Roselyn Zisman in Gurzi v Elliot:
"The respondent’s sporadic use of counsel to consult with, to draft documents and sometimes to attend court is an example of the problem with the so-called unbundling of legal service. Although this may have saved the respondent legal fees, there is no doubt that it resulted in the applicant’s legal fees being increased and was frustrating to both the applicant and her counsel. It required further court time as, when the respondent’s counsel did attend, many of the issues that had been previously canvassed with the respondent directly had to be reiterated for the respondent’s counsel."
French: Dégroupage des services juridiques and services juridiques dégroupés.
See also Maher v. Edmonton Drain Cleaners Ltd.
- Aprile, Vincent, Ghostwriter: A New Legal Superhero, 23 Crim. Just. 44 (2008-2009)
- Fisher-Brandveen, Fern; Klempner, Rochelle, Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urb. L.J. 1107 (2001-2002)
- Gurzi v. Elliot, 2011 ONCJ 158
- Maher v. Edmonton Drain Cleaners Ltd., 2004 ABQB 829
- Mosten, Forrest, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421 (1994-1995)
- NOTE 1: Report of the Unbundling of Legal Services Task Force, Limited Retainers: Professionalism and Practice, Law Society of British Columbia, 2008, page 12.
- Stevens, Ruth, Unbundling of Legal Services: Selected Resources, 89 Michigan Bar Journal 55 (2010)