Like most areas of legal practice, civil litigation has been affected over the past few years by the cuts in public spending. Following the withdrawal in April 2013 of legal aid for most civil claims, there are many people who are unlikely to be able to afford to pay privately for a solicitor to advise them. To help these clients, the Law Society published guidance on 19 March 2015 for solicitors called ‘unbundling civil legal services’.
Normally when a litigator uses the word ‘bundling’, he or she would be talking about the process of getting all the documentation ready for a trial. The term ‘unbundling’ has an entirely different meaning. Unbundling could be compared to the concept of ‘pay as you go’ or ‘a la carte’ legal services. The fees that a solicitor charges a client (called the retainer) are limited to particular stages in a civil claim. Some examples of unbundled legal services include:
• Providing a client with a self-help pack;
• Preparing a claim form or other documentation;
• Providing advice about a specific step or steps in a case; and
• Assisting a client at the final hearing by providing advocacy services.
In an unbundled case the solicitor does not necessarily accept service of documents, send out correspondence in the firm’s name, communicate with third parties or go on the court record. The idea is that instead of a case being solicitor-led, it is client-led.
The type of cases where a solicitor might want to offer unbundled services include small personal injury claims, housing claims, consumer and immigration claims. We will consider two key issues about unbundling in this article:
1) Whether unbundling can make legal services more affordable for a client; and
2) The potential risks in unbundling for a solicitor and a your role in helping reduce them.
Affordability
As a general guiding principle, legal fees should be simple, transparent and affordable. Fees for unbundled services are intended to be more affordable, and the service is likely to be provided in one of three ways:
1) ‘Pay as you go’ – Clients pay for the advice they receive, as they receive it.
2) Hourly rates – This is the traditional way fees are charged, but this method could increase the risk of the retainer being considered as taking a case on fully rather than on a limited basis or for a single task.
3) Fixed fees – When a fee is agreed this might be more appropriate for a single piece of work where it is possible to determine the average amount of time for completing the task. So, for example, drafting a basic claim form should take an experienced solicitor only 12–18 minutes. A reasonable fee for this task might be £50.
Risk
Unbundling services create two key risks:
• Allegations of professional negligence; and
• Failing to act in a client’s best interest.
As regards professional negligence, you may recall from your study of tort that solicitors have a high duty of care to their clients. To protect themselves, solicitors need to be very clear on what is covered by the retainer so that there can be no misunderstanding. The risk of providing negligent advice is higher when you are advising a client based on inadequate information. If a client is unable to provide sufficient information, then the safest thing to do is not advise them at all. Most solicitors providing unbundled services will provide a written disclaimer that their advice is based on the information that the client has provided. Whether this would be enough to free a solicitor from liability for advice when the client does not provide enough information is open to debate. There is an interesting case called Padden v Bevan Ashford Solicitors [2011] EWCA Civ 1616 in which the solicitor’s firm was held liable for advice given in five 15-minute consultations. The case is a good illustration of the importance of advising a client properly even if you are acting for a limited purpose.
A solicitor must also act in his or her client’s best interests. In some circumstances, unbundling advice may not be in a client’s best interest. This could include cases of great complexity or where there are concerns that the client does not have the intellectual or emotional capacity to carry out tasks unaided. How a solicitor decides whether a client is capable of dealing with aspects of the case is not explained in the Law Society guidance. Again, this may be a point of future debate as it relies on solicitors to use their professional judgement.
Neither of these risks can be absolutely eliminated, but if a complaint is made, then there is one key step that a solicitor should take to help show that he or she has acted properly. A client should be given a clear schedule of the legal services that will be provided and those that will not be provided. This should appear in the first letter a client gets and will help prove that a solicitor has acted in a client’s best interests.
Providing unbundled legal services is one way that solicitors can continue to help the less well off in society. As a member of a litigation team, you would be expected to understand all the different types of services your firm offers. If your firm offers unbundled services, could you explain what this means to a potential client?
In a future article linked to unbundling we will consider the key steps a firm should follow to provide unbundled advice. We will also explore where the trained Legal Secretary can add value and assist with the process of acting for a client on a limited retainer.