Law Times

Law Times • November 7, 2011 Unbundled services Lawyers welcome law society guidance BY JUDY VAN RHIJN For Law Times rules of conduct, unbundling will no lon- ger be a piecemeal response to people's in- ability to aff ord legal representation. Unbundling is now a safe and viable option that's particularly suited to family law matters where there are so many dif- ferent steps and stages. Hopes are high that it could play a real part in reducing the crowds of unrepresented liti- gants clogging the courts. At its September meet- ing, Convocation approved amendments to the Rules of Professional Conduct and the paralegal rules of conduct to provide guidance to practi- tioners who provide legal ser- vices for only part of a client's legal matter. "It's like reading the Ten Commandments," says lawyer Steven Bookman of the Hope Centre for Fam- ily Law and Counselling in Toronto. "Th ey are not designed to sanc- tion the practice but to give guidance on how to venture into a new area without fi nding yourself in the middle of a mine- fi eld and, at the end of the day, causing a lot of grief for yourself and the client." Th e law society adopted a defi nition of limited-scope retainer to assuage concerns that the term limited representation de- notes a lower standard of service. In fact, the new rules stress that an agreement to provide such services doesn't exempt a lawyer from the duty to provide compe- tent representation. It includes a duty to carefully assess in each matter whether it's possible to render the services in a compe- tent manner. Tom Dart of Barriston Law LLP in W Barrie, Ont., considers the rules to be well thought out and refl ective of the large amount of input from the profession. "I'm pleased it's now formally authorized," he says. Dart is particularly glad that the rules require the lawyer to say if the matter isn't suitable for a limited approach. "Some matters are just too complex. For those, ei- ther you're in or you're out." Bookman believes family law is more suited to the use of limited-scope retain- ers than any other area. "In criminal law, there is not much fragmentation within the case, but in family law there are so many diff erent things going on. It is also the most diffi cult area of law for the judicial system to deal with. Self-represented litigants are clogging the courts because of the incred- ible cost of retaining lawyers. People spend their entire life savings fi ghting over their life savings. Th is will let them come out with some money still in the bank with a principled resolution assisted by a lawyer." Dart has some concerns that the most expensive family law battles, namely those involving custody, are the ones that may be too complex for a lawyer to come and go from. "Lawyers really need to be involved from beginning to end in custody mat- ters. Property matters or one-off pension disputes are much more suited to limited involvement." Still, Dart sees potential for great savings of time and money during the multi-step family law process. "Case con- ferences are a good example. It's a good ith limited-scope retainers now provided for specifi cally in the Law Society of Upper Canada's use of unbundling to prepare the paper- work but not necessarily appear. Often you're sitting and waiting through a list of 15 to 20 cases. If you're No. 20, you could sit all day, and that's expensive." In Bookman's experience, a lot of people just want help with documents or to learn how the process works. Others want a law- yer to make one appearance and draft the documents for it. Bookman warns that to make the arrangement eff ective, lawyers will have to put some of their own time into the initial stages. "Lawyers need to understand that they are not actually going to get paid for all the work they do. I take the time to try and give the clients some background so my advice is contextual- ized. If they don't see the big picture, they get confused. I don't charge for that. A lot of lawyers will fi nd that off en- sive, I'm sure." Th is practice addresses 'I'm pleased it's now formally authorized,' says Tom Dart. Bookman's biggest concern that inexperienced lawyers will try to off er limited ser- vices to clients who just don't have the capacity to focus on a narrow part of the case. His other major concerns in- clude cases where lawyers are operating without full knowledge of the facts and where the limits of the services haven't been clearly set out and understood. "You must truly make sure you and the client are aware of the exact services pro- vided and where the services terminate," he says. "Part of that is dealt with by the limited-scope retainer referred to in the new rules. You need to do a written and very comprehensive limited-scope retainer which defi nes what you will be doing for the client." Dart agrees that this protection is criti- cal. "It's got to be in writing and it's got to be in plain writing. You should also inform the client that things will go by you. You're not going to know about certain events if you're not participating all the time. Th e client has to realize that." Dart feels that the rules off er suffi cient protection and guidance on these liability issues. "You're only liable if you don't act to the standard of a lawyer," he says. Dart recommends using American for the retainer precedents agreements. "Th e American bar has been doing this much longer than us," he says. "Th eir prec- edents fi t perfectly with our rules of profes- sional conduct." Dart is also pleased that the rules ad- dress the problem of managing commu- nications with opposing counsel. Th ey provide that lawyers are able to com- municate directly with a self-represented person unless they receive notice that the matter falls within the scope of the lim- ited retainer. "Often, you can sort of tell there's a lawyer on the scene because of the quality of the material coming out but you don't know who it is. Now you are protected." Bookman and Dart are both hopeful that the practice will grow. "It is a huge benefi t to self-represented litigants in every area of law to obtain the service of a lawyer at a defi ned rate for a limited service," says Bookman. "In my experience, people who are self-represented and struggling on their own will eventually look around for a law- yer just in the areas they think are critical. It could have a huge eff ect on the backlog in court services." 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• Cover
• Justicia Extended
• Texting Dangers
• Focus On Family Law