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"Unbundling is praised for cutting costs and Increasing Client Satisfaction."
- Lawyer's Weekly
December 18, 1995
WHAT IS UNBUNDLING?
Unbundling is defined as follows: The client is in charge of selecting one or several discrete lawyering tasks contained within the full service package. The
discrete tasks can be broken down into seven separate tasks:
1.Advising the Client
2.Legal Research
3.Gathering of Facts
4.Discovery
5.Negotiation
6.Drafting of Documents
7.Court Representation
THE FULL SERVICE PACKAGE
In the traditional full-service package, the lawyer is engaged to perform any and all of the
tasks listed above, meeting the demands of the particular case. In unbundling of legal service, the lawyer and client work together to allocate the division of tasks. This allocation
depends on the demands of the particular case as well as the needs and potential talents of the client.
DISCRETE TASK REPRESENTATION
The unbundled client specifically contracts for;
1.Extent of services provided by the lawyer;
2.Depth of services provided by the lawyer;
3.Communication and decision control between lawyer and client during the unbundled engagement.
You might be surprised to learn that you already unbundle in your law practice.
There are very few lawyers who provide the complete package of services to all clients. Most of us sell discrete services on a fee for service basis or choose to give away discrete
services for free.
Initial Consultation -
Do you ever see new clients or an existing client on a new matter for a consultation and it never goes any further? You provide advice and either the client decides to go no further or ends up hiring another lawyer (or non-lawyer) to do the work?
Drafting Documents - Do you ever prepare a real estate deed, a power of attorney, or just write a letter - and do nothing else? Second Opinions - Do people who have retained other lawyers ever come in to see you just to get your views on how their case is being handled. After having
the conference, do you find that the person stayed with their existing lawyer, changed lawyers (maybe to you, and maybe not) or decided to go it alone without a lawyer? Telephone Advice - Do strangers ever call you with an isolated legal question? You answer the question and never hear again from that person?
All of these common practice activities are examples of discrete task services that you already perform. So what's the big deal about unbundling?
The concept of
discrete task representation is not new to clients either. Corporations hire in house counsel to handle part of the job and to manage which services will be purchased from other lawyers
and on what terms. High income individuals know that it makes sense to use different lawyers for different tasks and to manage the lawyers' time effectively by having non-lawyers
(accountants, business managers, personal assistants) do a good deal of the leg work. Frankly, poor people unbundle involuntarily when they pick up just a form from a community legal
services office since budget cuts preclude full service representation for most poor potential clients.
So unbundling is not new. However, both lawyers and consumers are unaware of
its potential to both increase legal access and improve lawyer profitability for middle-income people.
Many clients are no longer willing to be treated like children. Today,
clients are more active, more educated in the art of clienthood, more questioning, and more demanding in their quest to control the purchase and supervision of legal services.
Unbundling meets the needs of this new breed of client. In contrast to the traditional attitude that client anxiety is somehow reduced by lack of information and attention, unbundling
empowers the client in an unbundled case. The client is the architect of the scope and tenor of the relationship. The unbundled client is the one who decides how the case is to be managed
and what role, if any, the lawyer will play. Even more novel: the lawyer not only agrees to this shift of power but invites the public to enter the office on that basis.
BENEFITS TO CLIENTS
It is important to know and understand the benefits of unbundling to advise clients competently whether or not they choose to unbundle or you choose to add
discrete task services to your present practice.
Unbundling Saves Money
Unbundling addresses the costs barriers of high lawyer fees in a number of ways:
No High Retainers -
Since clients are in charge of the amount of legal work, they pay as they go. Many unbundling lawyers do not charge any deposit with the understanding that the biggest risk will be losing a few hours work. When deposits or retainers are requested, they are only for the work requested.
Unbundling Lawyers Are Coaches - Since unbundling lawyers are not counsel of record, a retainer is not needed to protect the lawyer in a runaway case where
the lawyer must keep working even if the client owes money, or is uncooperative until the client consents to the lawyer stopping work, or the judge grants the lawyer's motion to
withdraw. In unbundling, no payment, no more work. Total Bills Are More Affordable -
Less work = lower fees. The lawyer's hourly rate may not differ in discrete task representation, but the cost to the clients will be more controlled and generally far less. Since clients are bearing more (if not most) of the total load, you will be doing less work. This means that in addition to not being scared off by high deposits at the outset, lower overall fees increase lawyer use in two ways. First, clients will be willing to stick a toe in the water and start using your services without the overwhelming fear of being stuck with an unpayable bill at the end. Even though many clients don't pay full service lawyers (see unbundling benefits for lawyers), the vast majority of people want to pay their bills and often hate you when they don't pay - and hate you even more when they are pressured or sued to pay.
Focus on Top Priority Tasks --
By limiting your scope, you can concentrate on the clients' most pressing needs. This should increase your efficiency for the tasks undertaken and hopefully reduce the costs to your clients.
Clients Have More Control
Probably the most fascinating finding of the 1993 ABA Study on Self- Representation is that over 50% of the self-representers could afford
at least some form of legal representation. Still, they chose to go it alone.
Why? More than half of the self-representers had the money and had some college education. So they
should know better - litigants with lawyers get better results. So why are so many litigants choosing this approach?
The answer is relatively simple. The need and desire for
control over their own lives seems to universally describe unbundling consumers. They want control in a number of areas:
Control over the Process
The nature of unbundling
is such that both lawyer and client say the words: "client is in charge of the process." This explicit agreement of the nature of the client-lawyer relationship defines the
power balance and sets the parameters for the roles and expectations of both client and lawyer as to who is in charge and whose needs are paramount.
One of mediation's
contributions to unbundling is that it gave clients with legal problems a taste of controlling their own process for resolution. We all bridle at being dependent or powerless, and
unbundling supports the desire for clients to be treated like adults by the attorneys they choose to work with. This process control is seen in a number of different ways:
The client decides what needs to be done to solve the presenting problem; The client decides whether the lawyer will be involved at all; The client decides the allocation of work between client and lawyer; The client decides whether the lawyer will actively monitor the situation or wait for the client to reinitiate contact.
Control over Choices
By remaining on the firing line, unbundling clients are faced with the same types of challenging decisions that you are when providing full
service representation. Should I write a letter or have a personal meeting? Should I serve the Summons or request the other side to pick it up? Should I give in on 5 smaller issues in
order to get a bit more on the big issue or just to reach finality?
These choices are the art of lawyering. They involve case strategy and they involve ultimate case decisions.
Actually the line between the process of handling the case and the ultimate provisions of settlement is often so blurred that it becomes a distinction without a difference. Yet, when they
are handling their own case, unbundling clients are confronted with these decisions directly and often want your help born from your training, experience, and just plain good judgment.
KEEPING LAWYERS OUT OF THE WAY
In addition to lowering costs and keeping control, many unbundlers truly believe that lawyer involvement does more harm than good - at any
price! Whether stemming from a distasteful experience or the anti-lawyer atmosphere reflected in lawyer jokes, large segments of society believe that lawyers just make a bad situation
worse by inflaming emotions, churning conflict, or being insensitive to the relationship and business-driven nuances that are the root causes and often the bases for solving human
disputes.
By serving as unbundled managers of dispute resolution, discrete task lawyers can serve to both inform clients about options, and serve as buffers to the court
resolution process that the public universally decries as not meeting their needs.
BENEFITS TO LAWYERS
The legal profession can certainly benefit from increasing its
customer-centered orientation. The profession is beginning to recognize its vulnerability in the marketplace as clients are increasingly self-representing, turning to non-lawyer
providers, or just living with a recognized legal need. Marketing courses for lawyers are the current rage, primarily because legal consumers (clients) are learning from their experience
as consumers of other products and services to expect disclosure of relevant "sales information" and friendly client-oriented service. Tools such as readable brochures,
responsive customer hot lines, and employer marketing training help meet this growing consumer demand.
INCREASE YOUR MARKET SHARE
The resulting benefit of no or low
deposits is that the public is more willing to utilize lawyers. Many people who are doing without lawyers can afford and are willing to pay limited fees for reduced service. [Bruce D.
Sales, Connie Beck, Richard K. Haan, Self Representation in Divorce Cases 13-20 (1993), published by the ABA Committee on the Delivery of Legal Services.] Most people know that it
is in their self-interest to use lawyers - only they can't afford to come up with the necessary starting fee. Many people will still not choose to pay a few hundred dollars and they'll
still try it themselves or just endure. But many more will at least give lawyers a limited try - and if satisfied with the result, they will use lawyers again and again on the same case,
to solve other problems, and will recommend that lawyer to others.
Learn from this consumer trend. Some innovative middle-income providers have developed thriving practices using
client-oriented advertising, office availability in shopping malls, information and service hot lines paid immediately by credit card or by phone bill, and other experiments in service
delivery.
YOU DON'T NEED TO REDUCE YOUR HOURLY RATE
Unbundling need not be confused with a reduced hourly rate. The fee arrangement may be "win-win" for both
you and your client. The client pays significantly lower overall fees. However, you can charge (and clients generally expect to pay) a customary hourly rate for the limited services
provided. Actually, some lawyers providing unbundled services may choose to offer such services at a higher than normal hourly rate based on a value billing concept, due to the
malpractice risks.
YOUR BILLS GET PAID
Another advantage of unbundling is that satisfied clients pay their bills. Satisfied clients generally pay faster so you need to
write off fewer fees.
Also, because bills do not skyrocket as fast and your work is better understood and appreciated by clients (who are actually making informed decisions about
which tasks you will perform and how much time will be billed), accounts receivable do not become so out of control.
INCREASE YOUR PERSONAL SATISFACTION
Attorneys who
sign on for the discrete task model may also find greater personal satisfaction and congruence with their personal values than in the bloodletting of a courtroom. Your belief in the
creative opportunities, efficiency, and cost benefits of unbundling can often inspire and steady a client to persevere through a bumpy and painful process. That inspiration and belief
alone may help clients achieve satisfactory resolution.
This article is based on Chapter One of Unbundling Legal Services by Forrest S. Mosten, published by The American Bar
Association (2000)
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