`Unbundled' legal services can give middle-class litigants help they can afford

With the cost of legal services driving more Canadians to represent themselves, some experts say lawyers should consider a new role: Courtroom Cyrano.

Like the famous character who whispered lines to a less-eloquent friend, lawyers would shift behind the scenes in some cases, "ghostwriting" legal documents for self-represented litigants. Or they would appear in court for a select portion of a case - such as a pre-trial motion - before allowing a client to take over.

Known as "limited scope representation" or the "unbundling" of legal services, the concept has gained some ground in the United States, where many see it as an affordable option for middle-class litigants - especially in family law cases - who don't qualify for legal aid and cannot afford a lawyer for their entire case.

"The reality, particularly in family law, is that in many, many jurisdictions, more than 50 per cent of litigants are unrepresented - but more than 50 per cent of people are not poor," said Sue Talia, a California lawyer and "unbundling" expert, who's speaking today at a pro bono conference in Vancouver.

"This is really a middle-class phenomenon."

Talia, who runs seminars for lawyers on the subject, sees unbundling as a way to move cases through the justice system more efficiently, benefiting both courts and litigants with modest incomes.

It's also a way to encourage more lawyers to work pro bono, she argues.

"It's easier to get people to volunteer if they know it's only for a finite commitment."

But not everyone believes that unbundling legal services is the solution to high costs.

"It can be fraught with problems," said Frank Addario, president of Ontario's Criminal Lawyers' Association. "There are negligence issues. There are visibility issues."

Some state bar associations worry that allowing authors of court documents to remain anonymous constitutes fraud on a court.

But Judge John Smiley, a Superior Court judge in Ventura County, Calif., who's supervised family courts for 10 years, calls unbundling a "marvellous" and "underutilized" device for helping self-represented litigants.

"Generally, people are not interested in having an open chequebook for all the (legal) services that might (be needed) in the context of a ... divorce," he said in an interview, adding that the number of lawyers accepting limited retainers is still "tragically small."

"I think lawyers are afraid of the concept. I think lawyers do not recognize there is a whole market available to them out there, with self-represented litigants who might use them for part of a case. I don't think lawyers market unbundled services as they might. And I don't think the general populace understands it's available."

The American Bar Association and about a dozen states have amended professional conduct rules to affirm that lawyers can accept limited retainers.

The Law Society of British Columbia did the same in April, in part to signal to the public there was an affordable way to obtain legal advice.

In Ontario, the Law Society of Upper Canada hasn't promoted unbundling, but lawyers are free to enter into limited-scope retainers as long as the limits are clearly spelled out.

Mara Cole, 49, a Toronto mother of three embroiled in a complicated family law case, said hiring a lawyer for discrete tasks sounds, in theory, like an "amazing" solution for self-represented litigants, but could be difficult in practice.

One potential problem is the time a lawyer would need to get up to speed on a case. "Background is everything when formulating a legal strategy," she said.

Cole initially tried representing herself, but the case was too complex. Her mother found money for a lawyer by cashing in a registered investment she had saved for a grandson's education.

"We're not a dirt-poor family, but that's the reality ... when you need $30,000 in one hit," Cole said.