I recently blogged on Laura Abel’s interesting idea about requiring counsel to disclose what they are not going to be doing. I pointed out that this might assist in a Turner approach to ensuring that what needs to be done for access is done.
It has been pointed out to me, however, that there are some real potential downsides with this approach.
Firstly, it might well discourage attorneys from agreeing to provide unbundled services if they feared that their division of labor might be subject to review — and indeed potentially critical review — by judges, who might, as many want, to force the expanding of the scope of services. Indeed, in many jurisdictions, some disclosure of the division of labor is already required, if only so that opposing counsel and the court can know who is to be contacted about what.
Secondly, there is a risk that such a colloquy would degenerate into an inquiry that would run into attorney-client privilege issues, and risk forcing the disclosure of the litigants strategic or tactical choices. (Indeed, some of us have taken the view that prohibiting undisclosed ghost-writing would impinge on the privilege.)
Finally, since self-representation is a right, so should self-representation be.
So, while I like the idea that attorneys who are appointed to provide full representation, but who in fact plan to limit their assistance should make such disclosure, I am much less sure about requiring such disclosure in the situation in which the client and lawyer have agreed upon a division of labor, as is the clients, to repeat the client’s right.
Of course, nothing here would prohibit an attorney, with the full agreement of the client, and in accordance with the clent’s own underlying wishes, rather than those of the lawyer, explaining to the court that a division of labor has been agreed, based on ability to pay, but that in the professional opinion of counsel, this division of labor is inadequate, and that under Turner, additional subsidized services are necessary to ensure access to justice. It would indeed be a sympathetic situation in which the client was making every reasonable effort — but I fear that all too many judges would respond by pressuring the lawyer to provide additional services pro bono, again building more disincentives to future unbundling.