Unbundling without tears!

Until a couple of years ago no one in the world of legal services had heard of ‘unbundling’. 

The idea had first been put forward by legal futurist Richard Susskind. He suggested that this would be the way forwards for delivery of legal advice in years to come.  I first mentioned it in 2013 –

 http://thestevecornforthblog.blogspot.co.uk/2013/05/the-demise-of-legal-aid-is-anyone.html

The idea is that lawyers will no longer see a case from cradle to grave. They will be brought in by clients at key stages to advise on particular issues and to assist with the drafting of formal documents.

Richard Susskind anticipated that it would become popular with sophisticated commercial clients who only have limited need for specialist legal assistance. The almost wholesale removal of legal aid in 2013 gave the concept a whole new market. Those who could not afford to engage lawyers were left to litigate in person. So the use of unbundled legal services became a significant resource. Lawyers will offer assistance at key stages. So, for example, they might give initial advice on the law and procedure for a fixed affordable fee. The litigant will then get on with it and go back to the lawyers at various stages along the way as the need arises. Family Lawyers, in particular, have helped clients in this way.

But there has always been a lingering worry. I touched on this in 2013. At that time I wrote –

‘I think there are some dangers. If the lawyer is dipping in and out of a case at key stages then something might be missed. Cases do not always follow a predictable path and I can foresee arguments between solicitors and clients as to what exactly has been agreed.’

In other words a lawyer could perform some limited tasks but be found to have a wider duty to explore and advise on possible pitfalls. This very point has been considered by the Court of Appeal in the recent case of Minkin v Lesley Landsberg [2015] EWCA Civ 1152

Mrs Minkin had asked the Defendant solicitors to draft a consent order. The retainer was limited to that piece of work. When it all went pear shaped she sued the solicitors for failing to advise on the underlying merits of the agreement. The Court of Appeal found in favour of the lawyers. Their instructions were limited to the drafting of a consent order. This is what they did. They were under no duty to go beyond this. King LJ talked of the invaluable benefit of unbundled services to both litigants and the courts. The court found that solicitors who offer unpacked legal services should not be subject to any wider to duty to beyond what they have agreed to do. Jackson LJ agreed.

 http://www.lawgazette.co.uk/practice/appeal-decision-protects-solicitor-offering-unbundled-advice/5052236.article

This is a clear statement from the Court of Appeal that lawyers should be encouraged to offer limited and affordable chunks of work with having to worry about being sued in relation to some wider issue.

I still have some mixed feelings. The Minkin case is clearly a comfort to lawyers. There is no doubt that unbundling can help litigants negotiate the maze of court procedures. It also helps the beleaguered courts. But it is clear that there will need to be a clear agreement in writing between the lawyer and the client about what exactly is agreed. There can be no room for ambiguity because if it goes wrong we all know who will be blamed!  

I would also be concerned about drafting a document to confirm an agreement that seemed not to be in the client’s best interests. But we can’t have everything. The government has seen fit to remove full access to lawyers for those of limited means. So at least this is something. And the clear message from the Courts is that the benefits to our legal system outweigh any possible concerns.