Some U.S. Law Firms Offering "Unbundled" Legal Services Facing Pushback from Courts: Is Canada Faring Better?
In a growing number of jurisdictions lawyers may choose or agree to take on part, but not all, of a client’s legal matter with the client’s consent. These agreements are often called ‘limited scope retainers’ or the provision of ‘unbundled legal services’.
The Law Society of Ontario (formerly the Law Society of Upper Canada) amended the Rules of Professional Conduct in 2011 to explicitly allow lawyers to enter into limited scope retainers and clarified the requirements when doing so, such as having the retainer in writing and signed by the client.
Limited scope retainers can cover a wide variety of situations, including when a lawyer ‘ghostwrites’ pleadings (or a factum or motion material, etc.) for a self-represented litigant, but does not appear in court on their behalf or become solicitor of record. The number of lawyers offering this type of service in Canada continues to increase. Also, in addition to unbundled services, some lawyers are also offering legal "coaching" which involves coaching or mentoring self-represented litigants through their cases.
There are many reasons why the LSO and other regulators would allow such retainers, including, most importantly, tackling the access to justice problem our society faces and providing an affordable option for litigants who cannot pay for full legal representation. While most lawyers get paid for their limited scope retainers, it can also encourage lawyers to take on manageable and limited pro bono assignments.
However, some have questioned (and I would argue unnecessarily) whether such unbundled services are ethical, especially in the context of ‘ghostwritten’ pleadings. These critics argue that the judiciary or opposing counsel may be misled by the material presented, or the clients may not understand what was written by the lawyer or their legal position. Also, some argue that these purportedly unrepresented litigants may take advantage of the courts’ tendency to overlook defects in unrepresented court filings. The main concern, however, seems to be that if a lawyer’s identity and involvement are not revealed, they may not be held accountable for potential violations of the Rules of Professional Conduct or for solicitor negligence (see the American Bar Association's Formal Opinion 07-446, which looks at, and dispels, some of these criticisms).
Just last week it was reported that a Florida law firm is facing push back from the courts for assisting pro se (self-represented) litigants. The Florida Bar's Rules of Professional Conduct allow limited representation so long as the attorneys provide clear notice of their participation. Specifically, a lawyer can draft and not sign documents for an unrepresented litigant, but must add language to show the filing was "prepared with the assistance of counsel". It appears that judges are reacting negatively when they read this on pleadings and believe that something "suspicious" is going on behind the scenes. One judge, after noticing the line saying "prepared with assistance of counsel" on a pro se litigant's document, ruled against the pro se litigant and ordered him to reimburse the plaintiff for an hour's worth of legal fees and ordered the firm to either step aside or become solicitor of record. The law firm in question believes that the issue is ignorance of the limited scope retainer rules and that instead of being "lauded or praised" for their initiatives, they are being "castigated" for their attempt to help pro se litigants.
In 2015, the top court in Rhode Island examined the practice of ghostwriting pleadings for self-represented litigants after three lawyers had been sanctioned by a lower court. In FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I.2015) the Rhode Island Supreme Court concluded that a lawyer may not ‘ghostwrite’ or otherwise assist a self-represented litigant with the preparation of pleadings, motions, or other written submissions unless the lawyer signs the document and discloses his or her identity and the extent of his or her assistance. However, the lawyer may also indicate that they are not the attorney of record.
In its decision the RI Supreme Court stated that until they are persuaded otherwise, full disclosure of a lawyer’s involvement is the better practice. A lawyer who prepares such documents must still be held to the same standards as a solicitor of record. However, the Court also asked for comments from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.
What was concerning for the Court in the Rhode Island case was that the self-represented litigants did not understand their legal positions or the material that had been drafted by the ghostwriting lawyers. They also thought that the drafting lawyers were their retained attorneys of record. This suggests that the lawyers did not do a good job of explaining their limited scope retainer or the legal work that they provided.
Has this type of pushback occurred in Canada? What are the best practices for Canadian lawyers who provide unbundled services?
The Rules of Professional Conduct are silent on the requirement of a lawyer to reveal his or her identity and involvement in assisting a self-represented litigant and no Ontario court appears to have commented on this particular issue. The Rules of Civil Procedure (Rule 15.01(4)) and the Family Law Rules (Rule 4 (1.3)), specifically allow a lawyer to enter into a limited scope retainer and not become a solicitor of record (a party represented by a lawyer under a limited scope retainer is considered to be acting in person unless the limited scope retainer includes the lawyer acting as solicitor of record). However, with that being said, if a self-represented is asked by the court if they are receiving assistance from a lawyer, they should answer honestly.
The concerns raised by critics of unbundled legal services can all be managed with proper procedures put in place by lawyers with their clients. Having the limited scope retainer in writing, clearly communicating with the client the scope of the retainer(especially at the intake meeting), working within your expertise, being careful of clients with hidden motives or unrealistic expectations, explaining the content of the documents you draft, and using a clear fee agreement, will all help avoid any ethical issues.
Ultimately, the benefits of providing unbundled legal services and legal coaching far outweigh the negatives if the proper consideration and steps are taken. Lawyers starting their own practice can quickly build a client base due to the unmet need for affordable legal services, especially in the family law context. For more information on offering unbundled legal services in Ontario see the following resources:
LawPro - PracticePro - Limited Scope Retainer Resources
Law Society of Ontario - "Unbundling" of Legal Services
National Self-Represented Litigants Project - The Nuts and Bolts of Unbundling: A NSRLP Resource for Lawyers Considering Offering Unbundled Legal Services
This post was written by Erin Cowling. While Flex Legal does not offer unbundled legal services to self-presented litigants (we work for other lawyers and law firms), we support this type of practice and are happy to assist our lawyer and law firm clients who do provide these services.
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