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26 Recommendations from the Conference

These recommendations can best be viewed as a starting point for additional examination and conversation.  The editor consciously made no effort to reconcile differing viewpoints beyond the work of the October conference but rather focused on presenting a faithful picture of interdisciplinary thinking on the topic of unbundled legal services at a certain point in time with the hope that a future conference or group may take up the challenge of refining and shaping this preliminary draft. Rather than as purely scholarly approach, the recommendations clearly reflect the struggles and concerns of those in the field as the justice system struggles to address the changing needs of those it serves.

Important Notes in Reading the Recommendations and Comments

Recommendations – The recommendations are grouped in four categories with a general statement as preface – Recommendations are made regarding the (1) legal services delivery system, (2) the courts, (3) organized private bar and (4) the state legislatures. Within each category, recommendations are listed at random. No hierarchy of priority should be assumed. The bolded recommendations were created (as opposed to reviewed and modified) at the conference. Due to the consideration process described below, these recommendations represent “the sense of the group” at one point in time among a broad, self-selected group of stakeholders and do not reflect the consensus of a vetted panel of experts. Additional recommendations from a subsequent workshop at the ABA/NLADA Equal Justice Conference in March 2001 are included but noted separately as the workshop was not a conference-wide effort.

Comments - The comments represent the minority dissent among the conference attendees as well as the subsequent comments received in various fora at which the recommendations were presented later in the year. The comments are not part of the recommendations but rather reactions to the recommendations or other comments.

Trends in Thinking About “Unbundled” Legal Services

Recommendations Consideration Process

Definition of "Unbundled" Legal Services

Conference Sponsorship  

Conference Recommendations

General Statements

System Recommendations (#1 - #6)

Court-related Recommendations (#7 - #13)

Organized Bar-related Recommendations (#14 - #23)

Legislative Recommendations (#24 - #26)  

Trends in Thinking About “Unbundled” Legal Services

Over the past two decades, an increasing number of people have approached their less complex legal issues without the full representation of a lawyer.  When people proceed pro se, they frequently turn to a lawyer for something other than complete representation, such as legal advice or coaching, form preparation or negotiations.  This new paradigm of pro se representation has created stress on the courts and challenges to the organized bar.   

Court systems and bar associations in several jurisdictions have examined the issues resulting from pro se representation, frequently assessing the role of “unbundled” legal services.  The reports from these initiatives included recommendations to the courts, bars, practitioners, legislatures and others on those measures that will best serve those who use the court system to resolve their legal issues. In preparation for the October 2000 national conference in Baltimore Maryland, these reports were compiled and then synthesized into a series of draft recommendations, which were presented to the conference attendees.

Recommendations Consideration Process

Over 200 conference attendees from 34 states and the District of Columbia reviewed the compiled source materials and the draft recommendations during two sessions - one at the outset and one at the conclusion of the conference. Each group focused upon one segment of the recommendations but was free to comment on any recommendation. Comments, based on facilitator notes and flip charts, were compiled and integrated. This post-conference document was reviewed by the conference planners, session facilitators and interested presenters and at a workshop held during the Equal Justice Conference sponsored by the American Bar Association and the National Legal Aid and Defenders Association in March of 2001. The conference participants and reviewers represented the perspectives of the judiciary, legal services, the private bar, law school clinical programs, “dot.com” legal entrepreneurs and the mediation community.

As clearly as possible, consensus among the conference attendees is reflected in the new language of these recommendations. New language created during the conference was incorporated into a recommendation if similar language was proposed by more than one workgroup or the change represented a clarification of language without changing the sense of the statement.

General Statements

Potential Benefits - The provision of “unbundled” legal services (e.g. discrete task representation) offers significant potential benefits to clients, regardless of income, by increasing their ability to obtain advice, drafting, review, limited representation, and other discrete services from an attorney - thereby promoting affordability, increasing meaningful access to the justice system, and empowering clients.

Funding Issues and Concerns - For funding purposes, “unbundled” legal services should not be considered a substitute for traditional, full legal services for those who lack the ability to proceed on their own behalf. This may discourage funding of full service models. Funders, and those who develop delivery systems, should make sure that the appropriate services (ranging from “unbundled” to full service representation) are available. The provision of “unbundled” legal services needs to be tailored to each situation or client circumstance so that the service can achieve the needs and goals of the client. Those who lack the ability to proceed on their own behalf should have access to full service representation to adequately protect their rights.

Comments:

“Unbundled services should be considered part of a whole system in which various modes of providing assistance exist. Full representation will always be a critical component of the legal services delivery system and because such assistance remains critically under funded, sufficient resources for full representation remains a high priority.”

“Such factors as the clients’ mental and emotional abilities, the nature of the case and language barriers (diagnostic assessments) should be considered. Any system for the delivery of legal services that includes “unbundled” legal services should focus upon case management/quality control/informed client consent. The system should include an effort to categorize case types or situations that can be served via discrete task representation and those that are unlikely to be adequately handled via discrete task representation. There will always be circumstances in which full representation is required.” 

Reaction to the second comment - “ I have concerns that placing on the advocate the burden of a mental/emotional assessment prior to proceeding will have a chilling effect. What is informed consent and who has the burden of getting it? What needs to be disclosed I the case of unbundled legal services? For example do you need to discuss aspects of the case that are not contracted? This takes us down a slippery slope.” 

Reaction to the second comment -“Case management considerations suggest that unbundled legal services should be managed. Thos may be possible in a legal services context but for a moderate income person operating pro se, it does not make sense.”

Reaction to the second comment - “Does it make sense to anyone who is not a bar executive to state that there is any circumstance in which full representation will be required?”
                                                                                                                                                             

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System Recommendations

Recommendation and Comments Description

#1 Evaluation - In addition to self-evaluation by providers, “unbundled” (and full) legal services need to be evaluated in different settings to determine their impact on clients and the ability to resolve legal needs.  Evaluation criteria should include the efficiency and efficacy of the systems as well as determining client satisfaction, outcomes and the extent to which the services are consistent with the fundamental values of the profession.

Comments:
“The role of “unbundled” services requires continuing research, including research on the types of cases and situations amenable to this approach.”
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#2  Examine Ethical Issues and Rules -  The current ethical rules should be reviewed and revised (if needed) so as to encourage the delivery of legal assistance via methods that increase access to the courts and to justice. To the extent consistent with a lawyer’s ethical obligations to clients, the court and bar should adopt and interpret rules, regulations and procedures to permit “unbundled” services under appropriate circumstances and conditions. The ethical parameters of “unbundled” legal services need to be critically examined. 
                                                                                                                                                           

#3 Collaboration Needed to Develop “Unbundled” System  - The bar, court, consumers, and legal services providers (including non-profit, for profit and “dot com” legal entrepreneurs) should collaborate to develop, provide and promote assisted pro se and “unbundled” services to persons who cannot obtain legal services to gain effective access to justice.  These systems should be structured to provide the maximum range of services to low and moderate-income people and to retain core values of the profession. The bar, court, consumers, and legal services providers (including non-profit, for profit and “dot com” legal entrepreneurs) should collaborate to develop, provide and promote assisted pro se and “unbundled” services to persons who cannot obtain legal services to gain effective access to justice.  These systems should be structured to provide the maximum range of services to low and moderate-income people and to retain core values of the profession. 

Comments:
"Bar, courts, legal service providers, etc. should encourage the provision of fee paid, 'unbundled' legal services by lawyers and educate consumers about these proposals."

"It should be made clear that the intent is to expand access, not to reduce access."

"There may be resistance by the bar and court if this recommendation means providing services for persons who can afford the services of an attorney, but chose not to do so. Any implementation of such a recommendation should clarify the difference between free services and those provided for a fee. It should be clear that the 'unbundled' legal services system is providing help only to people who cannot afford attorneys. If a person is voluntarily unreprensented then the bar, court and legal services, should not provide 'unbundled' services."

Reaction to comment immediately above – “ I don’t think that this is right at all. It ignores the evident gap in legal services and the consumers demand for unbundled services.  It flys in the face of reality and seems based only on the need to protect the bar monopoly. It also subtly suggests that unbundled services are of lower quality and that only the poor should be allowed to get lower quality services.”
                                                                                                                                                             

#4 Coordinated State Delivery Systems - - Each state should create a coordinated, integrated legal services delivery system that establishes clear and objective criteria indicating eligibility for various pro bono and reduced fee legal services, and specifying who has the responsibility to apply and review such criteria.

Comments:
“This recommendation should be expanded to include all unbundled legal services, not just pro bono or reduced fee panels.”

                                                                                                                                                            

#5 Increase in Funding for Legal Services - National, state, and local governments should increase funding for legal services to better meet the needs of the poor. Funding should also be increased for expanded court programs that assist self-represented litigants.
                                                                                                                                                            

#6 System Should Avoid Inappropriate and Involuntary Pro Se Litigation - - A partnership of the court, the bar and legal services providers should attempt to insure that persons are not appearing pro se involuntarily and inappropriately in matters where legal assistance is important to a just resolution of the matter.

Comment:
These partnership should develop pro se programs for those appearing voluntarily, to proceed through the justice system efficiently and effectively. See recommendation #7.” 
                                                                                                                                                             

Equal Justice Conference Additional Recommendations on System Issues

When discrete task representation is implemented by using pro se forms or classes it is imperative that the client get adequate information to understand the complexity of self-representation.  There must be both written information and instruction available to the self-representing litigant.  There should also be continuing instruction for those participating as self-representing litigants.

Comments: 
“The discussion here revolved around insuring that there were programs that allowed the clients to contact them for help such as hotlines, instruction sessions that taught the clients how to fill out the forms and what to do in court and questioned them at the end of the session to insure that they understood what to do.”  
                                                                                                                                                              

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Court-related Recommendations

 Recommendation and Comments Description

#7 Courts Should Offer Information and Services to Pro Se Litigants - - Courts should provide self-represented litigants with information (including information to indicate when the court can order one party to pay litigation expenses and attorneys fees, thereby allowing both parties to proceed with representation)  to enable them to effectively use the courts. The Courts should also offer services to enable litigants to effectively use the court, including assistance to self-represented litigants by court staff. Rules and laws governing the unauthorized practice of law and ethics should be interpreted in ways that are consistent with this principle.

Comments:
Editor’s note – Also see the commentary under Recommendation # 3.

“The courts should act only as referral centers, not legal service providers. The training and quality control around court personnel is critical. Volunteers/court personnel must not overstep the line of information/advice. The emphasis should be for the court to act as a resource to direct a pro se litigant to appropriate legal service, etc.- Not for court to provide advice.”

“This should be limited to make it clear that courts do not provide advice.  We need courts to develop projects and programs to get clients out the door, not just in the door. Overall, there is general agreement on the concept that courts should be more user friendly for self represented litigants.”
                                                                                                                                                             

#8 Study Needed - Courts should study the needs and composition of the self-represented litigants they serve and design services to effectively meet those needs. State and local studies should include frequency, distribution, needs and demographics.
                                                                                                                                                             

#9 Courts Should Train Judges and Staff to Assist Pro Se Litigants - Courts should establish policies and provide training programs for judges and court staff in their efforts to assist self-represented litigants. An evaluative component to measure and assess the quality of assistance provided by court related personnel must be included in these programs to ensure that the service provided is appropriate. The policies should be consistent with the duty of judges to prevent a miscarriage of justice for both unrepresented and represented litigants.

#10 Courts Should Evaluate Different Methods - Courts should develop and evaluate limited service methodologies.  Courts should assist, support, and where appropriate, develop and evaluate the effectiveness of other initiatives to address the unmet needs of self-represented litigants. Methodologies may include the recruitment and training of volunteers to assist pro se litigants and direct unrepresented persons to appropriate legal services, bars and other sources of assistance.
                                                                                                                                                             

#11 Appropriate ADR - Alternative dispute resolution programs should be available in appropriate matters.

Comments:
"
This should include language that describes what the terms or services agreed upon by the lawyer and the “unbundled” client can be and should be deemed appropriate.”
                                                                                                                                                             

#12 Court Funding for Pro Se InitiativesCourt Funding for Pro Se Initiatives - The court should allocate resources to assist self-represented litigants.

Comments:
“There is concern that money will be drained from funding for legal services.”

Reaction to the comment - “The issue should be over who serves the client best, not over who gets what money.”
                                                                                                                                                             

#13 Courts should establish guidelines prohibiting bias in the courts, and should ensure that all court personnel, including judges, lawyers, and non-lawyers, by evaluation of the guidelines and quality control of their application, adhere to them.
                                                                                                                                                             

Equal Justice Conference Additional Recommendations on Court-related Issues

The courts should have a rule, which allows attorneys to conduct discrete task representation in the courts and allows attorneys to withdraw from a case after the specific task has been completed.

Comments:
“There was considerable discussion about attorneys refusing to take unbundled or any pro bono case for fear of being held in a case for more work than they agreed to do for the clients or more than the attorney believed was reasonable under the circumstances.  One participant was an employee of the Immigration Court in D. C. and stated that some judges are liberal in allowing attorneys to withdraw and ot
hers are not. There was no uniformity.  Other participants raised the issue as a problem in their courts and in their recruitment efforts for pro bono and unbundled.”

There should be a review of ethic rules and an interpretation of those rules that indicate there is no unethical activity if an attorney participates in unbundling or to withdraws after completing a part of a case.

Comments:
“The discussion here centered on the attorney’s fear of being kept in a case when that was not what the client and attorney agreed to”.

There should be committees created in each state to review court forms, develop pro se forms and figure how clients can get pro se unbundled help.

Comments:
“The discussion was
about what is happening in Wyoming where there are such efforts. California has also been successful.  In Minnesota forms are being created county by county.  The participants had no agreement on whether the forms should be for only a county or judicial district or for the entire state. The advantage of a county is that as changes are needed they can be implemented more quickly and easily.  The advantage of statewide forms is that there is consistency in every jurisdiction in the state”.

Court forms for the self represented litigants should be created by the courts with the assistance of the private bar.

Comments:
“The discussion was around the concept that the forms must be created with the input of the private bar to add legitimacy and buy- in by the bar and make the bar feel that it has some ownership of the concept and not believe the concept has been forced on them”.

There should be efforts by legal services organizations and others to persuade courts to create limited appearance forms for certain types of cases such as family law matters.

Comments:
“The discussion here was lead an examination of a situation in Pittsburgh, Pennsylvania where, about 10 years ago, the President Judge to create forms and a protocol for private attorneys to enter a limited appearance in family cases if it was referred by the legal services program.  There was a symbiotic relationship between the private bar the bench and legal services in which the clients, bench and bar all benefited in this system.”

There should be efforts by legal services and the private bar to convince the court that discrete task representation is beneficial to both the litigants and the court. 

Comments:
“We discussed strategies for getting unbundled practice started in North Carolina specifically and other places generally.  It was agreed that the best way to start was to get a judge who is in favor of unbundled to advocate for it with other judges.  Another strategy is to get studies and statistics that show the need and the large number of self-represented litigants.  Then show with testimonials that the court process goes more smoothly if there are attorneys for a discrete part of the case and continues smoothly after the attorney is out of the case.” 

                                                                                                                                                           

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Organized Private Bar-related Recommendations

Recommendation and Comments Description

#14 Promotion of Technology in the Service of the Law - The bar should foster innovative technologies that aid the practice of law and better facilitate the delivery of legal services by taking steps to modify those policies that create barriers to the use of appropriate technology.

Comment:
“This recommendation needs to be tied into the technologies that assist with the unbundling process.”
                                                                                                                                                             

#15 The bar should consider the development of models that promote and advance “unbundled” legal services that can be implemented by the bar.  All such models should be evaluated and addressed to determine their responsiveness to meeting the needs of clients.  Efforts to examine and advance “unbundled” legal services must be collaborative and should include, in addition to the practitioner and the organized bar, those involved in ethics, discipline, legal aid, pro bono, legal education, the judiciary and court administration, social services and malpractice carriers.

Comments:
“This recommendation needs to be more aggressive.”

“This is absolutely vital!”
                                                                                                                                                             

#16 Bar Membership Involvement - Bars should promote “unbundled” legal services and pro se support to their membership through reports, studies, and information on such modes of practice, including ethics education, law practice management training and model retainer agreements. That information should include research and analysis of different services and from different perspectives.
                                                                                                                                                             

#17 “Unbundled” Attorney Panels - Bar-sponsored lawyer referral services should establish lists of attorneys willing to provide “unbundled” legal services. Bars should recruit, train, and sponsor panels of lawyers willing to undertake limited representation on a pro bono, reduced fee, or sliding scale fee basis depending on the client’s ability to pay.
                                                                                                                                                             

#18 Promotion of the Use Of Non-Attorney Advocates - When legal needs are not being met, the bar should experiment with the use of lay advocates who “assist to tell the story” and paralegals, for assistance in administrative agency and appropriate judicial proceedings where the public interest must be protected. The bar should encourage lawyers to participate in these matters on an “unbundled” basis, providing support and assistance to the lay advocates.

Comments:
“It may be necessary to further distinguish between legal services and independent paralegals.”

“Appropriate training, supervision, and possibly certification are needed to avoid the unauthorized practice of law by these individuals.  Lay advocates and independent paralegals pose particular challenges in the delivery of 'unbundled' legal services.  Specialization is perhaps part of the solution. Where an administrative agency (such as HUD) allows a non-attorney to appear as a representative before that agency, pro se litigants should be allowed to be represented by lay advocates.  Note- this suggestion was not supported by the group in which it was made.”

“There is concern that paralegals would not be adequately supervised by attorneys and would be engaged in the unauthorized practice of law.”
                                                                                                                                                             

#19 The bar should develop programs for presentation at the conferences of related and affiliated entities, such as the National Judicial College and the Association of American Law Schools. The bar should sponsor statewide conferences on unbundling, including all stakeholders as participants.

#20 The bar should promote “Pro Se” as a method of advancing pro bono opportunities, when (for example) it gives lawyers the ability to volunteer for a set time without ongoing obligation.
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#21 The bar should examine ways to facilitate pro se litigation, such as the development of plain English uniform laws and pleadings and permissible ghost writing.

#22 The bar should take steps to define the ethical perimeters of unbundling and maintain a dialogue with those responsible for ethics and discipline by sharing information, advocating responsible “unbundled” services and seeking accords on permissible methodologies.

#23 The bar should encourage the adoption of a word or phrase to better describe this set of services, instead of the word 'unbundling."
                                                                                                                                                              

Equal Justice Conference Additional Recommendations on Bar-related Issues

The private bar should be educated to the benefits of a discrete task practice showing that it benefits clients and that it also has an economic benefit for practitioners.  

Comments:
“We discussed the fear attorneys have that they will be economically disadvantaged if the practice of discrete task representation takes hold.  A fear that the members of the bar will be deprived revenue can be overcome by testimonials of practitioners who currently ‘unbundle’ and are successful
.
                                                                                                                                                              

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Legislative–related Recommendations

Recommendation and Comments Description

Editor’s Note: See also Recommendation #5.

#24 Eliminate Statutory Barriers to Court Pro Se Assistance - Courts should be statutorily authorized to provide assistance to pro se litigants. To the extent that legislative bars exist, these bars should be removed. In some instances this will entail creating exceptions to the statutes governing the unauthorized practice of law.

Comments:
“There may be trouble with changing underlying rules that exist to protect clients and consumers.”

“I would not concede that exceptions should be created to the statutes governing the unauthorized practice of law.” 
                                                                                                                                                              

#25 Qualified Immunity for Court Staff  - Court staff should be protected by qualified immunity for good-faith acts taken to assist self-represented litigants.

Comment: 
"NO –NO- NO”
                                                                                                                                                              

#26 Qualified Immunity for Attorneys -  States should provide qualified statutory immunity to attorneys and legal services programs from malpractice liability in cases where clients have specifically agreed by informed consent to a limited scope of representation.

Comments:
“There is concern that statutory immunity abdicates our claim as a profession to competency. Competency is context sensitive, therefore a blank claim is inappropriate.”

“This recommendation is like ‘putting a gun to a client’s head'-an unconscionable agreement. We are strongly concerned that if there is any limited immunity, it should be by court rule, not statutory.  Standards of care should be the same as always provided, not lower.  There is an equally strong concern about limiting malpractice.”

“NO –This would be a total disaster. The point is that malpractice standards should be appropriate to the context, not waived altogether. I feel very strongly about this.”
                                                                                                                                                              

Conference Sponsorship

The Maryland Legal Assistance Network (MLAN), a project of the Maryland Legal Services Corporation (MLSC), took the lead in the development and staffing of the conference and follow-up activities. Co-sponsors included: the AARP Legal Advocacy Group, the ABA Standing Committee on the Delivery of Legal Services, the ABA Standing Committee on Legal Aid and Indigent Defendants, the American Judicature Society, the Legal Services Corporation, the Maryland State Bar Association, the National Association of  IOLTA Programs, The National Legal Aid and Defender Association, the University of Baltimore Law School, the University of Maryland School of Law, and the Project for the Future of Equal Justice.

Submitted and edited by Ayn Crawley, MLAN Director at 15 Charles Plaza, Suite 101, Baltimore, MD 21202. 410-576-9494 – acrawley@mdjustice.org

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