November 8, 2006
More on "Limited Representations" or "Unbundling" Pilot Projects: Beyond Massachusetts
Posted by Alan Childress
Earlier, this blog and others reported on a pilot project in certain Massachusetts family-law and probate courts that allows lawyers to make limited appearances for discrete pieces of the case only, or even ghost-write briefs for otherwise "self-help" litigants. Here is a further website, devoted to self-help, that noted that several other states have started similar pilot projects in some of their courts too. Apparently the vocabulary for this trend is "unbundling" or "discrete task representation" because the attorney does not take on the matter as a whole or represent the client generally. States include Nevada, Maine, Idaho, and Florida. The site cites an earlier ABA Journal article on this subject and particularly the Florida experience, and links to a political organization called UnbundledLaw.org (with materials and forms, though its updates are through Jan. 04). And the National Center for State Courts links to many other states' takes on unbundling for pro se litigants.
Most expansively, and more recently, the California courts are on the verge (likely effective 1/1/07) of allowing "limited scope representation" generally in civil cases, far beyond its initial family-law pilot project. This is an area with potentially profound consequences for the currently perceived attorney-client relationship. And it will, I think, have to be worked out and reflected in ethics rules as well, not just court procedures (if only to strengthen the ethical duties to clarify with the client the nature and scope of the representation). Plus there may be new and unanticipated overlaps with Rule 11 sanctions-type issues, malpractice liability, and disciplinary rules promoting candor and disclosure to the court. For example, in California, "One new rule allows attorneys to assist with document preparation (ghostwriting) without disclosing their identity," as reported by the self-help website in endorsing the trend. Moves like that make me worry there is more heavy lifting to be done in this area before all the ethical and professional issues are resolved.
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As to the ethics concerns I raised in my last few sentences, the site/organization "SHLEP: the Self-Help Law ExPress" replies that there already has been thought and activity in that direction, in materials linked at its blog here: http://blogs.law.harvard.edu/shlep/2006/09/29/the-unbundled-weblogger/ . This includes a 10-page guide to the ethics issues in California for those lawyers in the originally more limited pilot project, at http://calbar.ca.gov/calbar/pdfs/ethics/COPRAC/COPRAC_02-0005_11-17-04.pdf . That is a state bar primer. Thanks to SHLEP's David Giacalone for these links and more links in his blog post linked above.
Posted by: Alan Childress | Nov 8, 2006 11:33:18 AM