Unbundled Legal Services: Untying the Bundle in New York State
Fisher-Brandveen, Fern, Klempner, Rochelle, Fordham Urban Law Journal
Access to the legal system is an inherent right of citizenship, yet far too many New Yorkers are currently denied this right because they lack economic resources.
--Chief Judge Judith S. Kaye (1)
The unmet legal needs of the poor and middle-class in New York State and throughout the country are well documented. (2) Nearly three-fourths of low-income Americans and two-thirds of moderate-income Americans with identified legal needs either ignore their problem or try to resolve it without assistance. (3) For many of these individuals, timely legal help could prevent unemployment, eviction, or the failure of a small business. Despite this fact, legal services budgets continue to be cut and thousands of potential clients are turned away each year. (4) This occurs in New York State, which has the seventh highest poverty rate in the United States. (5) Legal services offices cannot meet the need of the indigent, and a sizable middle-income population cannot afford private attorneys. (6)
A legal right is meaningless without access to the judicial system. Civil justice leaders, therefore, have looked for new ways to deliver legal services including "unbundling."
Unbundled legal services is a practice in which the lawyer and client agree that the lawyer will provide some, but not all, of the work involved in traditional full service representation. Clients choose the legal assistance according to their needs and perform the remaining tasks on their own. Unbundling has been described as ordering "a la carte," rather than from the "full-service menu." (7) A client might hire a lawyer for trial representation, but not for court filings, discovery, and negotiations. Unbundled services can take many forms, including telephone, Internet, or in-person advice; assisting clients in negotiations and litigation; assistance with discovery; or limited court appearances. (8) For many clients, these limited engagements make a lawyer's services affordable.
Unbundled legal services is touted as a new concept, although lawyers have been providing it for years in estate planning and mediation. (9) Outside the courtroom, unbundled legal services are commonplace. Clients often seek a lawyer's advice before negotiating agreements, or ask a lawyer to draft a document based on an agreement reached without the lawyer's assistance, or bring an agreement prepared by an opposing counsel to a lawyer for review. In each of these scenarios, the lawyer is asked to perform a discrete legal task, rather than handle the entire matter. Business lawyers have provided unbundled services to sophisticated clients for decades. These clients are often either repeat players with some knowledge of the law (10) or in-house lawyers who require the specialized expertise of outside counsel. The concept is more recent in the litigation context. (11) A variety of players provide unbundled services, including pro se clinics, community education programs, and some courthouses. (12)
Unbundling has received a great deal of attention. Everyone concerned with access to justice is looking at it, talking about it, holding a conference about it, or implementing it. In October 2000, the Maryland Legal Assistance Network convened a national conference on unbundled legal services, with attendees from thirty-four states, the District of Columbia, Canada, and Russia. (13) The American Bar Association's Standing Committee on the Delivery of Legal Services has an "unbundled" website to educate lawyers, court administrators, and the media. (14) In Arizona, at the Maricopa Self-Service Center, litigants can consult a list of attorneys who provide unbundled legal services. (15) In May 2001, the American Bar Association's Ethics 2000 Commission submitted its proposed changes to the Model Rules of Professional Conduct, which will clarify and encourage the use of unbundled legal services. …