UNBUNDLING Current Developments and Future Wnds

Forrest S. Mosten

I want to acknowledge Robert Hirshon for his support of legal access and participation at this conference. The fact that the president-elect of the American Bar Association is address- ing the National Unbundling Conference means so much for those who work daily through- out this country to increase legal access in innovative ways. Five years ago, I could never have dreamed that the highest officer of the world’s largest professional organization would so eloquently articulate the key benefit of unbundling before a national conference dedicated to this issue.

Unbundling is part of a consumer movement that is based on sharing responsibility between customers and service products. Do you need your taxes done? You now can use Internet tax programs and just pay your accountant to give it a final look.

Do you want to invest? Just look how Schwab’s E Trade and other online companies have met the demand of investors to do some of the work themselves.

Do you want to keep your teeth? Twice-a-year checkups at the dentist won’t do you much good unless you brush and floss at home! Consumers demand both quality and cost savings in the services that they buy-and are willing to do part of the work themselves. This is the essence of the do-it-yourself movement.

The potential of unbundling is truly revolutionary. In September 2001, the Los Angeles Times ran a story titled “Move to Unbundled Legal Services Growing.” Some of the high- lights in the article were these:

A judge said, “I hope unbundling will become standard procedure rather than a novel idea.” Anotherjudge was quoted: “I’m delighted to see unbundling whenever and wherever it occurs.” The county’s Bar Association and a group of Mexican American lawyers both passed resolu- tions endorsing unbundling. The article indicated that private lawyers want state laws sanctioning unbundling because cases last so long and cost more than clients can pay.

What’s really new about unbundling? Lawyers have long provided client consultations, second opinions, answered phone questions, and provided other discrete task services. What is really new about unbundling is the mind-set of lawyers to proactively make such limited services available and to tell Jane Q Public how to get them. For most people, this is what access to justice is all about: the ability to get into a lawyer’s office quickly and at a price they can afford. In many ways, unbundling is client education at its very best. The lawyer becomes a teacher of client empowerment to a class of one.

Author’s Note: This article is based on a Keynote AdLirrss delivered by the author at the National Conference on Unbundling in Baltimore, Maryland, on October 12, 2000.

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So, how does unbundling really work? Let’s start with a definition: The client is in charge of selecting one or several discrete lawyering tasks contained within the full-service package.

The client specifically provides for

1 . extent of services provided by lawyer, 2. depth of services provided by lawyer, and 3 . communication and decision control between client and lawyer.

The unbundling client-lawyer relationship has the following attributes:

The client-lawyerrelationship is a two-way collaborative process irather than the lawyer being in charge of strategy and tactics. Clients communicate directly with the other party with the lawyer coaching from the sidelines. Lawyers are valued as resources rather than directing client action or stepping in to act for them.

The following are the discrete tasks of the full package of lawyer services:

Advising client Researching law Gathering facts from the client Discovering facts from the other side Negotiating Representing clients in court Drafting documents

Lawyers throughout the world currently deliver some form of unbundled services. They

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help people fill out court paperwork, provide limited telephone advice, give limited representation to people who participate in mediation, operate a client library or other learning center in your courthouse or office, work in a collaborative lawyer model of negotiation with the pledge not to represent the client in court if settlement is not reached, offer classes to teach people how to help themselves, operate or offer advice or court forms over the Internet, and offer apreventive legal wellness check-up to clients that come into their office with legal trouble.

In working in the unbundling field over the past several years, I have been influenced and inspired by a number of unbundling pioneers who have blazed the path for the rest of us. While I risk leaving many people out, a few of those people whom I most admire and am grateful to include

Lee Borden of Birmingham, Alabama, works without staff as a lawyer coach and operates the world’s most comfortable Internet site for coaching, www.divorceinfo.com.

Michael Cane of Las Vegas, Nevada, is the first recipient of the ABA‘s Louis M. Brown Legal Access Award and has operated telephone advice lines for over a decade and is now launching a version on the Internet, www.telelaw.com.

Frank Garfield of Los Angeles has written article after article on the role of lawyers in mediation and has transformed his own law practice to focus on coaching.

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Wayne Moore of AARP, the American Association of Retired Persons in Washington, D.C., heads up legal services for the world’s largest public interest group-over 33 million members-and has been running seminars for seniors and a nationwide coaching network for many years.

Sue Talia from Northern California not only transformed her litigation law practice into a coaching practice but has inspired others through her books and work with the Contra Costa Bar.

Finally, Richard Granat of Baltimore, who has been a leader in technology and legal access and who operates a state-of-the-art website covering court forms and legal information in 50 states (www.Divorcelawinfo.com).

Unbundling impacts courts, lawyers, and the public in dramatic ways.

Judges and court stqfs: Focus on the image of a pro se litigant mulling through a shoebox of receipts trying to prove up a claim. The least any lawyer coach can do is advise the client to take the receipts, organize them, and write up a summary chart with a copy for the court and another for the opposing party. Such a small piece of advice will not only speed up crowded dockets but help the public get a fairer day in court.

Lawyers: With more people using lawyers on a limited basis, lawyers are regaining market share with clients who might otherwise never see a lawyer. Lawyers who offer limited-scope services are getting a competitive advantage-many clients will begin with a little coaching and then find out how hard it is to handle their own case. When that happens, they often convert from limited to full-service representation with the same lawyer who was willing to treat the client as an adult by starting with a coaching relationship. This means that by ofleering both full service and limited services allows the client to choose either or; ultimately, both services.

The public: Instead of being faced with the choice of buying the full package brand of legal services or going it alone without a lawyer, people can get competent limited representation. It’s like buy- ing a Chevy-most people would prefer driving a Mercedes than a Chevy, but most people can’t afford a Mercedes. They will buy a Chevy for basic affordable transportation rather than walk. In the same way, while most people would prefer having the help of a full-service lawyer, many people are now buying the limited help of a lawyer rather than being forced to navigate the legal system on their own.

UNBUNDLING IN 2020

Unbundling is here to stay. It is the way of the future-it is the way that law will be prac- ticed for the rest of this century. In 2020,20 short years from now, I predict

In 2020, 90% of the current courtrooms will be converted to areas of public education and mediation. In 2020, there will be client libraries in every courthouse, law office, and public service institution. In 2020, courthouses will have concessions for self-help materials-the fees will help pay for the self-help service centers that will be mandatory by state law. In 2020, every court user will get a brief legal wellness checkup that will be analyzed by systems funded by the U.S. Department of National Legal Health. In 2020, every courthouse will have a referral list of lawyers trained and willing to unbundle their services. Court clerks will help court “customers” select the lawyer that is right for them. In 2020, law schools will offer degrees in personal lawyering that will require courses in client counseling, consumer-oriented law ofice management, mediation, preventive lawyering, and trends in innovative legal service delivery. Every law graduate would be required to complete an externship in at least two offices offering unbundled services.

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In 2020, there will be an ethical obligation requiring lawyers to offer discrete task representation as an option to full-service delivery before clients sign a retainer agreement.

0 In 2020, state legislatures will mandate unbundling impact criteria which must be applied to all proposed laws, court procedures, and funding requests. By 2020, civil immunity for unbundling lawyers will have been in force since 2005. Since there are so few claims by unbundled clients, insurance carriers will have a profit motive to aggres- sively encourage lawyers to unbundle. In 2020, state bars will offer a specialization in limited services representation. In 2020, bar associations will have generic advertising encouraging people to see their lawyers on lifecycle events to prevent conflict. Like seeing a dentist twice a year, people will see their lawyers yearly for personal legal audits, before they get married, before they have children, and before they retire. Lawyers will become asymptomatic legal health care providers.

Some of my predictions may become reality in less than 20 years-just think, 20 years ago, mediation was in its infancy.

If unbundled legal services truly becomes a permanent fixture in the family justice sys- tem, its values of client self-determination and consumer empowerment will expand legal access. This will positively impact the courts, the legal profession, and, most important, the parents and children of divorce throughout the world.

Forrest S. Mosten is a mediaror and certijied family law specialist in Los Angeles. He is recognized as the “furher ofunbundling,” and his hooks include Unbundling Legal Services (ABA, 2000) Mediation Career Guide (Jossey-Buss, 2001), The Complete Guide to Mediation (ABA, IY97), and Operating a Profitable Mediation Practice ( I 998). He may he reached at www.MostenMediation.com.