The Failure of Unbundled Legal Services to Meet the Crisis in Access to Justice

In the past decade, various law societies, bar associations, and members of the judiciary have allowed and tacitly endorsed the provision of unbundled legal services. For law schools, members of the profession and judiciary, and professional regulators who recognize the crisis in access to justice, these unbundled services or limited scope retainers (and legal coaching) ought to be a vital addition to the access to justice landscape: they provide people with the kind of supports that are needed to resolve their legal issues.

The case for unbundling

Unbundled legal services provide limited help from a lawyer or paralegal while the client otherwise represents themselves, and are most common in the context of litigation matters. However, it is interesting to note that, in certain commercial contexts, parties may negotiate an agreement among themselves before retaining legal services to draft the resulting contract – a form of unbundled legal services. This legal services arrangement is contrasted with the delivery of legal services that contemplate an ongoing retainer in the context of a traditional lawyer-client relationship. For example, an individual may seek out a lawyer’s assistance with the drafting of a factum or a specific court appearance, but otherwise maintains carriage of their own matter.

This approach to the delivery of legal services is particularly important in the context of self-represented litigants (SRLs). Statistical data shows that a significant number of SRLs may start with legal counsel, but, as their matter drags on and/or becomes more complicated, the client runs out of money and is left to represent themselves. One recent NSRLP statistic indicated that approximately 68% of SRLs (2019-2021 intake report of 279 SRLs) started with counsel. This fact is problematic because, once engaged in litigation, many clients are left to fend for themselves; the corresponding problem is that SRLs are less likely to be successful in their legal matter.

However, there is a silver lining to this. There is a recognition that a significant portion of SRLs can or could pay for some legal assistance – there is a large proportion of litigants who, although they cannot afford traditional, full-service retainers, do have some money to put toward legal assistance. Thus, the benefit of unbundled legal services is that it allows for the targeted and more efficient use of those services. Currently, there is a front-loading of legal services, meaning clients are often left in the lurch just as the litigation picks up pace and heads toward trial. With this in mind, there is a very practical argument to be made regarding unbundled legal services as a means of securing more services to more individuals. With some planning, clients and lawyers could map out the elements of a case and divide the labour in a more productive fashion. Additionally, by not being obligated to provide a retainer upfront, the client may be in a better financial position to secure legal assistance in respect of unanticipated events or at later stages in their case.

Moreover, in terms of a diversified and broader demographic of law school students, it could be assumed that disrupting the traditional approach to practice and expectation of work-life balance within practice would be of interest to those graduating from law school. The provision of unbundled services may allow lawyers to control the volume of their work as well as choose the type of work they wish to perform. This is not to mention the fact that, in disrupting the traditional mode of retainer and file carriage, lawyers are actively working to improve access to justice and facilitating more meaningful participation by individuals in the justice system. If we are to take seriously the commitment of various law schools across Canada to enhance access to justice for the average citizen, these benefits should not be under-estimated.

For all these reasons, unbundled service ought to be a practical and useful alternative for increasing access to justice for many more litigants, for a more efficient legal system, and for a mutually satisfying service model for both clients and lawyers.

What isn’t working?

However, the availability of unbundling has failed to come close to providing the level of services needed to assist the tsunami of SRLs now appearing in the civil justice system. SRL intake statistics compiled by the NSRLP indicate that 50% of respondents sought out unbundled legal services. However, of those SRLs who had worked with a lawyer previously (approximately 68.9%) only 27% were offered unbundled legal services as an alternative to a traditional retainer. This means that approximately 72% of those surveyed advised that while working with a lawyer, they were not apprised that unbundled services was an option and were ultimately obligated to represent themselves.

As previously noted, the impact of these statistics is made more problematic when it is remembered that a significant portion of the SRLs had lost their legal representation; this is most often associated with an inability to continue paying for legal services and therefore having to continue on their own. The question that follows is whether those who had initially retained a lawyer, but were ultimately compelled to represent themselves, might have made better strategic use of their limited funds with unbundled legal services, rather than simply running out a retainer?

A moral imperative to provide accessible services

More fundamentally, this raises an important question about the nature of and responsibility for the provision of legal services that most effectively assist individuals. NSRLP would argue that there is a need for more proactive engagement with unbundled legal services. The endorsement and promotion of unbundling by lawyers ought to be grounded in a moral imperative flowing from the profession’s obligations to promote the public interest, and from the monopoly that the profession has in providing legal services. To the extent that lawyers control the market for legal services, as well as the cost of those services (subject to a reasonableness requirement), the profession needs to take responsibility for delivering those services in ways that are accessible to the public. While lawyers are entitled to make a living, questions of profitability cannot outweigh lawyers’ professional responsibilities: their obligations to the public interest necessarily include accessible legal services.

To the extent that lawyers’ services are priced beyond the reach of the average citizen, there must and should be a reconciliation. The urgency of this undertaking is further underscored by the fact that ad hoc pro bono services are not sufficient in picking up the slack. The small sampling provided by the recent NSRLP intake reports of SRLs reinforces this point: only approximately 8% of the SRLs surveyed were able to access pro bono services. This serves to reinforce the need for a different approach to the delivery of legal services – and unbundled legal services can provide part of the answer.

The legal profession faces few restrictions on the rates an individual lawyer may charge. Although there is an ethical duty to charge reasonable fees, as well as a practical reality that is shaped by the market, both these limits only serve to delineate a very broad range of fees. The reality is that a significant number of individuals may be able to afford some fees, but they generally cannot sustain a regular retainer over several years.

Thus, in light of the continued monopoly enjoyed by the legal profession and the profession’s discretion in setting its own fees, it is incumbent on the profession and its regulator to actively encourage the development of unbundled legal services. While the LSO has taken steps to provide lawyers with resources that outline the nature of unbundled services and the possible pitfalls associated with providing these services, it is apparent that the message is not reaching the intended audience – since, clearly, more lawyers ought to build these types of services into their practice. In fact, there is insufficient data on the use of unbundled legal services, both their availability and efficacy. The suspicion is that these services are not commonly offered and therefore under-utilized.

Recognize, legitimize, and promote unbundling

Whatever the reason, there is great demand for these services, and there should be a moral imperative for the profession to offer this alternative to the traditional mode of legal service delivery. It is not suggested that such a shift will eliminate the crisis in access to justice. But the implemention of unbundled services on a large scale will, together with a host of other accessibility initiatives, serve to improve opportunities for self-represented litigants to meaningfully resolve their legal issues.

In order to affect such a shift, there is a need for sustained recognition, legitimization, and promotion of unbundled legal services by a coalition of lawyers, members of the judiciary, members of the academic community, and regulators. Moreover, such an undertaking must seek to understand what types of unbundled services are needed, and in what forms. This requires the continued engagement of those seeking such services in user feedback initiatives. Implementation and evaluation: both will contribute to the overall access to justice project.