LAWPRO Concerned That Unbundled Legal Services Will Mean More Claims

The Law Society of Upper Canada is currently reviewing the ethical and procedural issues relating to the “unbundling” of legal services, otherwise known as “limited scope representations” or “limited scope retainers.”

Unbundling is the concept of taking a legal matter apart into discrete tasks and having a lawyer or paralegal provide limited legal services or limited legal representation, that is, legal services for part, but not all, of a client’s legal matter by agreement with the client. Otherwise, the client is self-represented. While the Law Society’s Rules of Professional Conduct and the Paralegal Rules of Conduct do not prohibit such retainers, there is nothing that expressly addresses limited retainers or unbundling of services.

For more information, see the Law Society’s background report which includes the proposed amendments to the rules.

The Law Society’s unbundling working group has recently concluded a consultation with the profession on proposed rule amendments and is reviewing the submissions it received.

LAWPRO made a submission as it is concerned that the more widespread provision of “unbundled” legal services in Ontario will increase malpractice claims. The source of this concern is that the root causes of the most common malpractice errors that LAWPRO sees are at least equally, if not more likely, to occur during the provision of unbundled legal services.

Unbundled legal services are one of the solutions to the complex issue of access to justice, and LAWPRO recognizes that the provision of unbundled legal services is occurring in Ontario at the present time and that they are likely to become more common.

However, LAWPRO feels it should be recognized that unbundled legal services are not appropriate for all lawyers, all clients, or all legal problems. LAWPRO feels that any effort to encourage or facilitate the broader use of unbundled legal services should include the consideration of all relevant issues with the goal of ensuring that clients get competent representation on all matters, including those provided on a limited scope basis.

In a nutshell, LAWPRO’s position is that all the rules that apply to full representation should also apply to unbundling or limited scope representation. Limited scope representation should not mean less competent or lower quality legal services. Lawyers providing unbundled legal services owe the same duties of competence, diligence, loyalty and confidentiality to limited-scope clients that they owe to full-service clients. As compared to a full scope representation, there may be fewer tasks performed by the lawyer on a limited scope matter, but the competency and quality of the work done on those tasks must not be less than it would be on a full service matter. It is critical that lawyers identify the discrete collection of tasks they can undertake on a competent basis when handling an unbundled matter, and it is clear to the lawyer and the client what tasks the lawyer is responsible for, and those for which the lawyer is not responsible. Ideally this should be done in a written retainer as post-matter disputes over the scope of work to be done are far more likely if the retainer is ambiguous and/or not in writing.

LAWPRO believes three fundamental requirements must be met before a lawyer may properly limit the scope of services to be provided to a client. First, the lawyer must consult with the client about the limited representation that will be provided. Second, the client must provide informed consent, and ideally, this consent should be evidenced by something in writing (to prevent post-matter disputes as to the scope of the retainer). Most importantly, the limitation must be reasonable in the circumstances and the engagement must not be so limited as to prevent competent representation.

If the greater provision of unbundled legal services is to be encouraged and facilitated through changes to the Rules of Professional Conduct and the Rules of Civil Procedure,
LAWPRO suggests that the goal of ensuring more satisfied clients and reduced malpractice claims can be attained by highlighting how the basic principles behind the ethics and court rules apply equally in the context of unbundled services. Some issues, such as the ghostwriting of pleadings, limited court appearances and the termination of an unbundled retainer will likely require Rules changes.

See LAWPRO’s Submission on Unbundling for more information on LAWPRO’s concerns.

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Comments

  1. I chaired the OBA’s working group with Morris Chocla on LSUC’s proposed amendments to the Rules of Professional Conduct (RPC). (The OBA’s submissions can be found on the OBA website – http://oba.org/en/publicaffairs_en/PDF/OBA-LimitedScopeRetainersSubmission_20jan11.pdf.)

    The OBA’s submissions are largely in agreement with LAWPRO’s. Two points emphasized by the OBA are: while it is preferable for there to be written evidence of the limited scope retainer agreement, there are many instances where the written agreement required by the LSUC proposed RPC amendments, would be impractical, and cause unacceptable expense and delay. Second, while RPC commentaries are helpful, matters such as what advice is appropriate concerning limited scope retainers, and the appropriate restrictions on communications with clients who are represented on a limited scope basis, must be left to the professionalism of the lawyer.