Law Times

Law Times • November 8, 2010 FOCUS PAGE 13 Are unbundled services the answer? Limited retainers carry benefits, risks for both lawyers and clients BY JUDY VAN RHIJN For Law Times I n a bid to make legal ser- vices more accessible to low-income clients, fam- ily lawyers have begun taking limited retainers for parts of a dispute rather than taking the matter on as a whole. Unbundling is one of the trends referred to in the report from the Ontario Civil Legal Needs Project released on May 31. A joint project of the Law Society of Upper Canada, Le- gal Aid Ontario, and Pro Bono Law Ontario, it identified un- bundling as something that could make legal services more economical for litigants. The concept has many names: limited legal services; limited legal representation; partial or abbreviated services; and, as in the United States, discrete tasks representation. It represents a middle ground be- tween managing without law- yers completely and signing a full-service retainer. The client decides which tasks the lawyer is to perform along with their scope. For example, lawyers who have prepared documents may reduce their fees if the cli- ent files and serves them. Tom Dart of Burgar Rowe Professional Corp. in Barrie, Ont., says that in such cases, instead of having a retainer that states the lawyer will help with all of the issues that arise, it may deal with specific aspects. "If there is a case conference next week and the client is represent- ing him or herself, the lawyer might help prepare the paper- work for that but after that is no longer involved in the case." The potential benefits in- clude lower costs, particularly from exchanging an hourly rate for a fixed fee, which gives certainty and comfort to the client. However, like any new way of doing business, there are serious concerns about its use. The Ministry of the At- torney General's web site, for example, has a warning about unbundled services: "The more difficult and time-consuming the client's tasks are, the greater the risk that the client's inter- ests could be compromised. Ethical questions regarding the adequacy of support by the lawyer in cases of varying com- plexity readily arise." Supreme Court Chief Justice Beverley McLachlin referred to the practice during a speech at a Vancouver legal conference in early 2009. While she noted that it was worth looking into, she cautioned lawyers about the risk of incurring liability by providing services without knowing all of the facts. "It is a problem," Dart says. "There is an ethical obligation to exercise due diligence. It's difficult if you don't know all the facts and the background. It's risky to take a narrow re- tainer when you don't know the history of the case. You may have to go beyond the scope of a limited retainer to give proper advice. You may get through it with some cases but not all." In the United States, some bar associations and courts have tried to restrict the use of lim- ited service agreements, but the effort is losing steam. In Ontar- io, the rules don't prohibit such retainers but they don't address them directly either. But in June, the LSUC struck a working group to study the regulatory and pro- cedural issues that may arise when a lawyer or paralegal pro- vides representation or services for part, but not all, of a legal matter and clients otherwise represent themselves. It will also look at ways to offer such services and provide ethical guidance to lawyers, paralegals, and the public about them. Consultations are ongoing. The working group will accept submissions until November. One firm already on the un- bundling wagon is the law office of Steven Bookman, which op- erates under the banner of the Hope Centre for Family Law and Counselling in Toronto. It has been offering unbundled services for the last two years. "It's terrific," says Bookman. "It offers opportunities for people to self-represent in a more in- telligent manner. Any disad- vantages to this practice are far outweighed by the advantages to the legal system and to the clients themselves." Medical malpractice litigation is one of the most difficult and challenging areas of law. At Thomson, Rogers we enjoy a reputation built on experience and skill in prosecuting these claims. Above all else, our greatest asset is a proven record of success. Contact our Medical Malpractice Litigation Group: Denny Dixon, Richard Halpern, Wendy Moore Johns, Sloan Mandel or Aleks Mladenovic. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom According to Bookman, the backlogs in the family court system are largely due to self-represented people who know little about what they're talking about. "They dominate the court's time for little or no results," he says. "Unbundling is invalu- able to empower people to represent themselves more effectively." Bookman's law firm of- fers seminars and workshops to educate people about the family law system, after which the lawyers offer their services on a piecemeal ba- sis. "You can liken it to the new MLS rules where you hire a realtor for a specific purpose," Bookman notes. "If they need you to draft an affidavit or want you to ap- pear at one specific motion or conference, they can." Bookman has been able to don't frustrate the court and waste the court's time. I be- lieve the court appreciates the help." Bookman has also refined his way of dealing with ap- pointments. "People who do their own affidavits send them in before they come in so I can read them in advance and use the time effectively while they are here," he says. "They are not paying for my letters and phone calls, just whatever time they use." Bookman also believes 'Unbundling is invaluable to empower people to represent themselves more effectively,' says Steven Bookman. iron out a number of difficul- ties his firm encountered in the beginning. "I now give people an introduction to family law and what they'll be doing," he says. "I ask them if I could walk into their job and say, 'I can do it just as well as you because I've read a couple of articles on the Internet.' They usually laugh at that. I then tell them what's involved in taking a file from beginning to end. I give them a sample book of documents so they can see what a real affida- vit or a real application looks like. I explain the steps so they the biggest problem is the liability issue. "Lawyers must make sure they protect themselves," he notes. "If a motion doesn't go the cli- ent's way, you don't want the lawyer to be blamed if he or she only helped." In response, Bookman emphasizes that the lawyer must address that issue in the initial agreement in which the client acknowledges that coun- sel is only involved in a narrow and confined way. "The law- yer is not responsible for what came before or what comes af- terwards," he says. LT Unmasking the mystery. Untitled-3 1www.lawtimesnews.com 4/14/09 9:00:22 AM

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law