Unbundled legal services, limited scope retainers, law à la carte, discrete task representation—whatever you want to call it—is fraught with confusion and myths about its risks. Read JP Boyd’s lucid primer post on Slaw from last year if you’re new to the subject.
At Courthouse Libraries BC, we recently teamed up with Kari Boyle to host a Family Law Unbundling Toolkit. An earlier initiative, the Family Unbundled Legal Services Project hosted by MediateBC, was specific to mediation. But that project identified the value of unbundling more family law services. The Toolkit, hosted on our website for the benefit of BC family law practitioners, is for those curious about unbundling. A Roster (and signup page) promotes those who already offer unbundle family law services in BC. (This is distinct from the national database of legal professionals who offer unbundled services for various legal needs, across Canada.)
Kari’s longstanding efforts to promote unbundling, along with those of other influencers like Chief Justice Bauman, JP Boyd and Dr. Julie Macfarlane, are designed to improve the supply of unbundled legal services by shedding light on some of the myths. So far, in the words of Dr. Macfarlane, lawyers who unbundle are “about as rare as a shooting star on a cloudy night.” I hope Kari’s practical approach (offering sample retainer agreements, FAQs, webinars, etc.) and the awareness-boosting rosters can help accomplish what moral persuasion alone has not.
The barriers to unbundling’s success, touched on in the links above, stem from a mix of:
- Demand Challenges — i.e. the market isn’t buying unbundling, or
- Supply Challenges — i.e. lawyers aren’t offering it.
While Dr. Macfarlane’s research points to supply as the chief problem, it hardly helps that few really know what unbundling even is.
Unbundling is an esotheric term, perhaps more evocative of firewood, or maybe post natal care, to the uninitiated. Compare that to popular, consumer-friendly terms like “DIY” or “self-help”.
But consumer confusion aside, unbundling’s problem is not truly a demand one. Evidence from Dr. Macfarlane’s study of 253 self represented litigants shows demand for unbundled services in spades. Among those respondents virtually all sought an arrangement resembling a limited scope retainer. They probably didn’t all use the exact term—but they knew what they wanted when they saw it. Only a handful actually received unbundled help, however. The problem was supply-side.
When we talk about the larger supply challenge, focus shifts to lawyers. Many agree unbundling is up against a hide-bound, control-obsessed, risk-averse legal culture that equates piecemeal legal work with greater liability, less prestige and unmanageable expectations on the part of clients. I encountered an example of this just last week when a Law Society of BC Bencher responded to a question about unbundling with a warning about how claims risks are very real, and advised that Benchers’ days are filled with claim reviews. The implication (given the actual question) was not only is unbundled legal service risky, but it’s claiming more victims even as we speak. This confused me since we are also told that almost no one offers unbundled legal services. Could there be a dearth of lawyers selling unbundled services and a surfeit of lawyers getting in trouble for it?
As I followed up it became clear the Bencher had no particular account of travesty involving limited scope retainers in mind, but merely meant a general warning about the inherent claims risks clients pose when instructions, expectations and retainers are not clear. (This, of course, is exactly what a limited scope retainer is meant to solve!) You could chalk this story up to non-sequitur, but this is hardly an isolated case. The prevailing legal culture is obsessed with regulatory woe when it comes to unbundling’s perceived risks.
Mistrust of limited scope retainers has, frankly, overstimulated lawyers’ amygdalas. A separate short survey of lawyers conducted by Dr. Macfarlane showed “clarifying liability issues is the most frequently cited concern (79% of responses) about offering unbundled family services”. Meanwhile, the routine practice of burning through a client’s savings under a full scope retainer, and the practice of dumping the client once they are broke, angry, disillusioned and on their way to phone the regulator, continues unabated.
Although the Law Society of BC formed a task force 12 years ago to explore unbundling, and although it gave its blessing nearly nine years ago in a report, and although we rewrote the Code of Conduct to encourage more unbundling in 2011, lawyers rarely offer limited scope retainers. The sad consequence of this, as detailed in Dr. Julie Macfarlane’s May 2013 NSRL Project Final Report (see pages 41-42), is that those who cannot afford a large retainer upfront just go without a lawyer entirely.
Proponents are challenging misconceptions of risk, and crafting practical solutions to the common fears around scope-creep, complaints, reputational concerns, angst over getting off the record, etc. But we must also unpack the myths surrounding its benefits.
There is every indication that a better supply of unbundled options will allow less affluent consumers access to legal assistance, but is lower cost the only market factor worth sharing? Are we concentrating on the access to justice angle at the expense of other conversations? Is it actually/possibly/maybe the case that lucrative and untapped markets exist here?
Dr. Ab Currie’s recent work, “Nudging The Paradigm Shift, Everyday Legal Problems In Canada“, hints yes. He coins the term “self-helpers” (people who did not obtain legal advice) and looks at self-helpers whose problems had been resolved:
“[They] were asked if, in retrospect, they thought the outcome would have been better had they obtained help. […] 42% of self-helpers felt the outcome would have been better had they obtained some help. […] 80.3% of respondents said better information, 67.9% said someone to explain the legal aspects and help with forms, 68.8% said an advocate to intervene on their behalf and 32.9% said a lawyer to handle the problem through the legal system.”
What’s remarkable—especially if you’re a lawyer concerned that every unbundled client is looking to smuggle more scope into your retainer—is that full-scope representation was actually the least popular option. Lawyers might fear that each client desires complete dependence and wants only to pay bargain rates, but at least some of this market would gladly pay for a bit of assistance and actually prefer their autonomy.
Look at what you’re selling in a limited-scope retainer that you are not offering in the full-scope version… control, autonomy, self-reliance.
Dr. Currie’s data revealed that a large percentage of people with everyday legal problems were self-helpers, but that many prefer to “handle the problem on their own” out of a sense of personal responsibility. For these people, there was high interest in getting help with unbundled tasks, and a comparative absence of interest in more comprehensive help. For this market segment, autonomy is a more valuable commodity than end-to-end assistance. Furthermore, there is no indication that this group of consumers are prohibitively cost-conscious.
For unbundled services to really make it prime time, and for lawyers to really get jazzed up and see the opportunities here, we need to bust a market myth. We need to approach unbundling not as a lesser product in the market for legal services, but an entirely different product for an entirely different market.
When the pin drops that clients seeking unbundled retainers are not just desperate, impecunious SRLs in need of A2J charity, but in many cases autonomously-minded people capable of taking on many steps in their matter and paying for other steps to be handled, I bet we will see a quick change in perceptions around unbundling. These people are already lost to the traditional full-scope retainer business model. They are waiting to be found by a new legal business model.
One final point to mention relates to Dr. Currie’s research. It shows that unbundling may be an especially good fit in family law matters where people tend to have higher legal capacity. Dr. Currie defined legal capacity according to five different dimensions:
- understanding of the seriousness of the probem,
- awareness of legal implications,
- knoweldge of what help was needed,
- knowledge of where to go to for help, and
- overall knowledge of the legal problem.
He measured legal capacity between people with different types of legal problems, and found that capacity is distributed unevenly across problem types. In family law matters, folks rate higher in the first four dimensions, but lower in the last dimension, “overall knowledge”. For unbundled family law service providers, it may be reassuring to know that their clients are among the most capable, and that with some unbundled assistance their clients can effectively be empowered and raised to higher all-round capacity.
What do you think?
Is there an untapped market in providing unbundled assistance to self-reliant litigants who have no interest in conventional retainers? Is this a lucrative market? Could the right unbundled practice, with the right marketing message, assist a greater number of self-reliant clients but do less work for each one, and maybe even outperform a full-scope practice?
— Nate Russell is a liaison lawyer with Courthouse Libraries BC. Find him on Twitter @nrusse.