Wayne Moore’s Unbundling Test

I was at a symposium at Georegtown last week, and heard, among other things, Wayne Moore’s simple test for whether unbundling was appropriate.

The test (below) is to intrigue you with Wayne’s systematic analytic approach, which is much in evidence in his forthcoming book on legal aid models.  Readers of this blog will be hearing more about the book in the near future.

The Four Part Moore Test for Unbundling

  1. Can the person handle the tasks required?
  2. Is the proof of the matter simple?
  3. Is there an opposing attorney?
  4. Does the judge have a lot of discretion?

Of course, these are only matters to be taken into consideration.  The attorney should (and is indeed required by the ABA Model Rules of Professional Conduct, including Rule 1.2 (c) (to the extent they govern), to ensure that the litigant makes an informed choice in the matter.

The Rule

Rule 1.2 (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Comments: Agreements Limiting Scope of Representation

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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