Canadian Lawyer

lawYerS have MiXed viewS on unBundling T he majority of firms offering unbundled fees find they help to attract more business, according to a recent survey in Law Times. But the time-consuming nature of the increasingly in-demand work is sometimes proving to be a false economy for lawyers balancing a desire to improve access to justice with the need to run busy practices. Almost 100 firms took part in the survey and about two-thirds of them offer unbundled fees, also known as limited-scope retainers, that allow clients to take on some of the work themselves. The biggest proportion (45 per cent) of those offering unbundling have done so for between two and five years, although 37 per cent have done it for more than five years and 18 per cent for less than a year. More than half (55 per cent) of those offering unbundled services said it has helped them to attract more business. One respondent commented: "A lot of people, particularly in the area of family law, are more and more vocal about not wanting to engage the Full Monty when dealing with their family law matters these days. Or clients are unwilling to pay for full representation in litigation but want coaching instead." Another respondent said unbundling can be useful in Small Claims Court matters where "the fees for representation would quickly outstrip the potential award." But a quarter of respondents said unbundling hadn't helped to attract more business at all and a fifth didn't know whether it had or not. A lawyer who "frequently" offers clients the option of unbundling says there's very low demand because if people can't afford a fully retained lawyer they "usually can't afford or aren't willing to pay for a partial retainer either." Almost half of respondents work in litigation and more than a third in family law, followed by trusts and estates, corporate/commercial, real estate, and alternative dispute resolution. The majority are sole practitioners or at firms with between two and 10 lawyers. Demand for unbundling has grown along with the increase in self-represented litigants. But while it may be attracting new clients, this isn't necessarily translating into increased revenues. Toronto lawyer Kumail Karimjee says unbundling is "more of a service offering than something that generates a lot of business or revenue." Clients are also increas- ingly contacting Karimjee halfway through a case that has started to heat up. While picking up a file from a selfrepresented litigant is "very challenging," being able to offer unbundling at an early stage means a lawyer can advise clients and reduce the risk of the case becoming messy and unmanageable, he says. A number of survey respondents who didn't offer unbundled services cited the risk of additional costs. Others expressed concerns about people without legal training carrying out the work or said their firms' partners weren't eager to change traditional fee structures. The biggest worry — mentioned by one in five respondents whose firms didn't offer unbundling — was the risk of a lawsuit. The possibility of disputes over the agreed scope of the work sparking malpractice claims is one reason why unbundling "scares" LawPRO, says Dan Pinnington, vice president of claims prevention and stakeholder relations. Lawyer and client communication issues have represented a third of LawPRO claims and costs over the past decade, and will likely arise as a result of unbundling, says Pinnington. In an attempt to minimize the likelihood of claims, the Law Society of Upper Canada issued guidance in 2011 requiring lawyers to provide written confirmation of any limitedscope retainer. Grey areas remain, however. It's not always possible to "draw a box" around a service that lawyers have pledged to provide, says Pinnington. For example, a lawyer may agree to appear at a preliminary hearing, but it may not be obvious whether it commits them to dealing with questions arising from any order made on that day. Despite the concerns, LawPRO hasn't seen a significant rise in claims related to unbundling. Pinnington advises lawyers to interview prospective clients as carefully as if they could afford full representation. "Lawyers providing unbundled legal services owe the same duties of competence, diligence, loyalty, and confidentiality to limited-scope clients that they owe to full-service clients," he warns. — ChArLotte sANtry charlotte.santry@thomsonreuters.com www.CANADIAN L a w ye r m a g . c o m June 2013 9

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