As a result of recent actions taken by the New Hampshire Supreme Court, consumers now have greater flexibility than ever before in accessing and utilizing legal services. “Unbundling” of legal services is now allowed and the effect should be greater accessibility to legal services by segments of the population historically unable to secure needed assistance of counsel in dealing with legal projects. Lawyers are now able to provide unbundled legal services to their clients in all areas except criminal law. Unbundling is expected to have the most significant impact in the handling of family law matters.. It is a development we at Parnell & McKay, PLLC are very excited about as it means we will have much greater flexibility in customizing services to fit clients’ particular needs where money is a real issue for the client. Prior to unbundling being allowed this segment of the population would likely go forward without professional legal assistance. The availability of unbundled legal services is an exciting new development that will allow a larger percentage of the public to access legal services.
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Simply put, unbundling means breaking down a project into its component parts. Once a legal project is broken down, it is easier to determine what a particular individual is capable of doing on their own and what they may need assistance to complete. A home remodeling project is a good way to demonstrate unbundling. Included in the typical bundled remodeling project is framing, drywall installation, wiring, floor covering installation and painting or wallpapering. After breaking the project down to its components, or “unbundling” the project, one can determine what he or she comfortably can do and with what components he/she will need help. For example many are comfortable painting or wallpapering but might be uncomfortable with the other components of remodeling. With an unbundled approach to remodeling, the homeowner secures services only in the components he or she does not feel skilled enough to handle.
Handling projects by unbundling has long been an option available to consumers in many different areas, like remodeling, but until very recently, not in the handling of their legal affairs. Historically, lawyers have been required to handle matters from beginning to end basis, on a bundled basis only, and the price of services reflected that. This was true even if some of the components were within the ability of the client to handle on their own. In turn, the cost of legal services was priced out of range for many, in fact far too many people. If the remodeling homeowner was required to pay the contractor for every component of the remodeling job and could do nothing himself to reduce the cost, remodeling then would be out of reach of many, just as accessing legal services has been priced out of reach of many that need them. Fortunately for consumers, that has now been changed and a consumer and an attorney are free to agree on what components the client will handle and what components the attorney will handle.
There are some special court rules and ethical rules that have been adopted to facilitate this new accessibility and at the same time to protect the clients and the attorneys taking advantage of this new accessibility. Foremost is the requirement that there be a full and complete disclosure by the attorney to the client of what services are being provided and that the relationship does not extend beyond that disclosure. Ideally that disclosure should be in writing, a practice strongly encouraged as it protects both attorney and client and avoids confusion. The disclosure should include what services the lawyer and the client have agreed the lawyer will provide. It should also contain a statement that the lawyer is not obligated to help in any part of a case other than what is covered by the agreement and that his/her efforts in areas like investigation, research and legal analysis are limited to the services covered by the agreement. There is a form that has been prepared by the New Hampshire courts for this purpose, but any form that meets the full disclosure requirement can be used and it is permissible, though not recommended, to complete the disclosures by word of mouth only.
Other rules deal with procedural issues that will come up when the unbundled option is chosen. For example, each judicial division in New Hampshire has adopted rules that address the form of appearance to be used if the unbundled service is provided in connection with litigation. Additional rules set forth the attorney’s obligation to the court when the service the attorney agreed to as part of the unbundling of components is completed. In essence the rules impose a requirement that the court and all parties be advised of the existence and extent of the representation agreed to and that the appearance describe the limited representation. The rules also require that when the service has been completed the court and parties be notified with the filing of a withdrawal of limited appearance. In addition, the rules also provide that the scope of the representation can be expanded beyond that which was originally agreed. For example, if it becomes apparent an additional motion or pleading needs to be filed and the client and the attorney agree to include that in their contract, the motion can be filed and will automatically amend the scope of the appearance that had originally be filed.
The rules also provide guidance when the scope of the agreement provides that the client will handle his or her own court appearances, and the attorney’s role is limited to assisting with preparing documents and court filings. In that situation the filing is required to contain a statement “This pleading was prepared with the assistance of a New Hampshire attorney”. This is important as other applicable rules mandate that any document prepared by a New Hampshire attorney automatically is a certification by the preparer that the pleading has been read, that there is a basis for the pleading and that it is not filed solely for delay. Incidentally, when a non-lawyer signs a pleading in some circumstances, they are making the same representation. With this certification, even though the attorney is not handling the litigation, those involved in the litigation know that the claims being made are legitimate and also know that sanctions will be imposed on the offending party or attorney if the pleading turns out to be frivolous even if it was filed in the context of limited representation.
How does this process work? It is actually pretty simple. Like the remodeling example, any legal project can be broken down into component parts. For example let us take a simple divorce. Among others, components of a simple divorce include initiating the action with a petition for divorce; engaging in discovery (the process of learning the other side’s case, how they intend to support it and securing information from the other side that helps present your case); document preparation; determination of support issues, property settlement, motion practice and court appearances. An individual contemplating a divorce or finding themselves a party in one initiated by their spouse and wanting to explore the option of unbundled services, simply determines, ideally in consultation with a legal professional, what components of the process they are comfortable handling and the components with which they would like assistance. An agreement is thereafter worked out between the consumer and the attorney describing the components to be performed by the attorney, the required disclosures are made and the informed consent of the client is secured. At that point the consumer is all set and the matter proceeds forward.
At Parnell & McKay, PLLC, we pride ourselves in being in the forefront of this new movement toward unbundling of legal services. Our goal throughout our existence has been to provide competent legal services at a reasonable cost. These new rules allow us to expand our efforts in that regard to underserved segments of the population and we are embracing the concept. This dovetails very well with our longstanding commitment to Collaborative Divorce, a different form of unbundled legal service structured so the courts are not involved in resolution of the issues between divorcing parties. Unbundling will provide consumers with the same options they have when they deal with other, non-legal projects. They are now free to do that which they are capable of doing on their own and use legal professionals only for those components for which they truly need assistance. In so doing consumers can now control and limit the traditional costs associated with legal projects and thereby make needed services available to a much larger percentage of the population.