As you know, the ABA Commission on the Future of Legal Services recently requested comments to use in its work.  While there are many worthwhile comments posted, I thought it useful to share this one in both longer (attached-linked) and shorter versions (see below).   It analyses criteria and services that might be provided, as well a a suggestion as to how a system might be launched.  I have included some comments in italics, with Wayne’s responses.  The longer version includes Wayne’s bio.

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Moderate income Americans have the least access to legal services. By moderate income, I mean those with incomes between 125 and 300 percent of poverty. While various delivery methods are being tried (low bono; post-graduate law school programs; virtual law practices; unbundled services, and reduced-fee, referral panels), none have reached scale. Therefore, it is useful to begin by identifying the criteria that a delivery system would have to meet to reach scale.

A. Criteria

1. Services must be fully supported by the fees paid by clients.

Rationale: if the services require a subsidy, they become just another competitor for very limited legal aid funding.  (Richard note:  this may not be practical, given the complexity and cost of some cases.  Systems of co-payments and subsidy might be designed that would sufficiently increase the legal aid pie.  Moreover, polling data tells us that there is much more support for comprehensive systems — which this could be on the verge of becoming. Wayne responds that subsidy would make starting, scaling and complex cases very difficult.)

2. Most services must be unbundled.

Rationale: moderate income people simply cannot afford full services, particularly for contested cases. Legal aid and court-based self-help centers have developed extensive tools that can be used to effectively provide unbundled services[1].

3. Recent admittees to the bar and others establishing a new private practice must be able to provide these services.

Rationale: These providers are the major underutilized segment of the legal profession; scale is not achievable without reliance on these resources.

4. Providers must be able to provide these services anywhere in the U.S.  (Richard Note: If this is saying that these services should be provided without state barriers, I completely agree.)
5. Providers must receive assistance in marketing their services

Rationale: In order to be self-supporting, providers must handle a high volume of cases. This requires more marketing than traditional legal services; yet providers have less time for marketing as more time is required to provide the services. Therefore they must receive marketing help from others, such as bar associations, courts, law schools, legal aid programs and/or law libraries.

6. Providers must receive support from experienced practitioners.

Rationale: It requires more experience to provide unbundled services than traditional services, because one must accurately coach clients on how to represent themselves and this coaching requires experience. Providers cannot learn on the fly as most recent admittees usually do. Thus, providers must be able to consult an experienced attorney as needed.

7. Providers must be able to establish a private practice on their own.

Rationale: Initiating a new practice cannot require a complex infrastructure such as an apprenticeship or law school program. Otherwise initiating a practice is dependent on the creation of this infrastructure, thereby limiting the ability to reach scale.  (Richard Note:  But this does not mean hat models such as incubators cannot accelerate adoption.  Wayne feels that these will be hard to get to full needed scale.)

8. Providers must use the latest technology and systems to maximize efficiency such as streamlined intake systems, case management systems, document generators and scanners, and advanced telephone systems.

Rationale: In order to charge low fees, providers must be very efficient.  (Richard Note:  Agreed — a major role for law schools.

B.   Unbundled Services

Unbundled services are services where a lawyer and client agree that the lawyer will provide some, but not all, of the work involved in traditional, full-service representation. The lawyer performs only the agreed-upon tasks, rather than the whole “bundle,” and the client performs the remaining tasks on his or her own. I practiced unbundled law for moderate income people in VA, MD, and DC for 3 years. Even though Virginia courts and ethics codes do not specifically authorize unbundled practices, we engaged in unbundled services, because the VA courts we used allowed us to ghostwrite pleadings without disclosing our involvement. The ABA has issued an ethics opinion that holds that ghost writing pleadings is ethical under the old rules that don’t specifically authorize unbundling[2].

Here is what I learned from this experience. Unbundled law must be practiced differently for moderate income people than for middle income people. For middle income people, the practice usually assumes that the attorney will represent the client until completion or at least until the trial stage. Unbundling is simply a method for splitting all the necessary tasks between the attorney and client. With moderate income people, where a retainer agreement is not feasible, the attorney cannot assume that the client will purchase more than the first bundle. So all the tasks required to complete a matter must be separately priced and sold. It is absolutely critical that after an attorney completes a bundle, the case is closed, so there is no ongoing responsibility for the case. For example, if the first task is to prepare a pleading or legal document, the case is closed when the client is sent the document. Any mistakes are corrected for free, if requested within, say two weeks. If the client wants changes, this is a separate bundle. If the client wants the attorney to supervise the signing of the document (e.g. will), this is another bundle. The completion of each bundle is accompanied by a close out memo indicating that the attorney has no other obligations to the client (other than to correct mistakes). Each new bundle is initiated by a new retainer agreement. Otherwise, providers have to keep their case files open too long, which is prohibitable in a high volume practice.  (Richard Note:  This is a very important insight that should be adopted regarless of whether people agree with other ideas here.)

C.  Fees

To the extent possible, flat fees should be charged for each bundle. Moderate income people are wary of hourly rates even if they are low, as they cannot easily control the total cost. Since a provider cannot afford to have uncollected fees, all fees must be paid up front before the services are delivered. Also, providers should try to handle some full-representation cases to the extent possible to subsidize their unbundled practice.

D. Intake

Since a high volume practice is required, providers cannot afford to have unanswered calls from prospective clients. Many moderate income callers are reluctant to leave messages and, if they do, the call back must be within a few hours to successfully reach the callers. Generally providers cannot afford to hire full time support and yet need help in answering the calls. The best solution might be a professional call center or stay-at-home, part-time worker who can screen the callers to ensure their problems are within the provider’s expertise and schedule an initial consultation.

If this is not possible, the caller should hear a message asking them to leave a message and giving a time frame during which to expect the call back. Ideally this call back should be the same day to be successful. Caller ID should be used to promptly return a call that is missed.

The provider must charge a flat fee (around $45) for the initial consultation, since he or she cannot afford to provide free consultations or spend much time talking to the caller prior to the initial consultation.

E. Quality Control

When I started my unbundled practice, I had not practiced law in over 25 years, as I was in management. Thus quality was of great concern. I leased a document generator with most of the common pleadings and legal documents for DC, MD, and VA. This gave me a good foundation for preparing documents. I also contracted with attorneys experienced in DC, MD, and VA law, at a low hourly rate, to review all my completed documents at least initially, and advise me on court procedures. I also paid them to advise my clients about matters beyond my expertise.

Of course, the ultimate test was whether my clients obtained the court orders they wanted. These outcomes helped me to refine my methods as necessary and to gain the experience I lacked. Some of my experienced attorneys were willing to represent my clients at court hearings for a flat fee of less than $1000 as discussed below.

F.  Types of Clients and Cases that Can Be Addressed

Not all moderate income clients and their cases are good candidates for unbundled services. I developed four criteria that I used to decide whether clients could represent themselves in court: 1) abilities of the client (I didn’t serve clients with mental disabilities, limited English speaking skills, or hectic lives where they could not be expected to represent themselves), 2) the simplicity of proving the case (I only handled cases that could be proven with testimony and/or the submission of simple documents), 3) the presence of an attorney for the opposing party (I primarily handled cases where the opposing party was pro se[3], except in uncontested cases), and 4) whether the decision maker (e.g. judge) had limited discretion in deciding the case (I primarily handled cases where clients would obtain a favorable ruling if they submitted the necessary proof (e.g. uncontested cases)).  (Richard Note:  This analysis is a major contribution, and provides the answer to many of the studies that seem to downplay the effectiveness of unbudled.)

Generally unbundled cases fall into three categories: 1) those where the client only needs a legal document such as a will, advance directive or trust, 2) those where the attorney prepares the pleadings and coaches the client on how to represent themselves in court, and 3) those where the client is responsible for much of the preparation and the attorney represents him or her in court.

1. Document preparation

Documents must be produced with document generators instead of filling in forms, cutting and pasting, or drafting documents from scratch. A document generator can prepare all the pleadings for an uncontested case, including the proposed order in 20 or 30 minutes. Typically fillable forms are only available for the initial court pleadings and completing forms or cutting and pasting can take several hours for all the necessary documents in a case. Some document generators allow clients to provide the necessary information through a website, so that providers only need to review the documents for accuracy and completeness^[4]. New programs such as A2J Author® help clients prepare documents entirely by themselves by using a graphical interface that moves step by step though the process needed to capture the necessary information^[5]. Websites are available that use a multimedia presentation to capture client information and generate court pleadings^[6].

2. Coaching clients to represent themselves in court

I handled the following uncontested cases where the clients represented themselves in court: divorce; name change; conservatorships/guardianships; Chapter 7, no asset bankruptcies and probate. These cases, other than probate, took me between two and four hours to complete.

I found that clients could handle the following tasks with coaching and written materials: filing court papers, arranging for service of process, and assembling the necessary evidence and witnesses. If they encountered a problem, I could usually coach them through the necessary corrective action. I drafted all the required court papers including the proposed order. I supplied them with the questions they and their witnesses would have to answer at the hearing. I also prepped them by phone prior to the hearing. Since uncontested cases involve little judicial discretion, clients could usually obtain the court judgment they were seeking, if they brought the necessary documents and witnesses. Occasionally, they would forget to do this, and I simply provided them with copies of the pleadings and coached them through a re-filing of the case.

I was even able to help clients with certain contested cases such as child support where the incomes of the parents were easily established; child custody where one spouse was denied all visitation rights and there were no issues of physical or substance abuse; enforcement of custody and child support orders; and landlord/tenant cases where the client needed more time to move out. While I didn’t handle domestic abuse cases, D.C. court staff helped people prepare pleadings and affidavits for a temporary protective order and helped them proceed pro se[7]; the client was then referred to social services for additional help, and an attorney could enter the case when needed. There is evidence that unemployment benefit cases also can be handled pro se with advice and document preparation assistance[8].

I even handled some contested divorce cases where the other side was represented by a lawyer, so long as the parties wanted an amicable settlement. I prepared my client’s court pleadings and a draft separation agreement favorable to my client, which could be used as a starting point in my client’s negotiations with his or her spouse. I told my client not to talk to the opposing attorney but to speak only to the spouse. I would help the client through the discovery process by preparing interrogatories, motions, requests for documents, and pro se subpoenas. By this time, the opposing spouse’s legal bills had usually reached $5000 to $8,000, whereas my client had spent less than $1000. This difference in fees often caused the opposing spouse to agree to settle the case with guidance from his or her counsel. I advised my client throughout the process, but didn’t sign any pleadings or talk to the opposing counsel or anyone else.

3. Representing clients in court

I did not do this in my practice, but this is what most clients want. I believe providing this service is necessary for the unbundled practice to be economically viable. Even if charging hourly rates and requiring retainer agreements may not be possible, there are situations where representation at a hearing requires modest preparation, so long as the client gathers the necessary evidence and witnesses. Consequently a flat fee of less than $1000 can be charged. An example of such a case is a child support hearing where the client is able to provide pay stubs for both parties or a recent federal tax return. Even if clients lack access to this information, they can be coached on how to obtain this information from the IRS or subpoena their spouse’s employer. The retainer agreement can stipulate that representation at the hearing is conditioned on the client’s ability to provide the necessary evidence by a specific date prior to the hearing. In these cases the client is coached to file the case pro se, in some cases using websites for the preparation of pleadings and in other cases paying for the attorney to prepare them. The attorney only enters his or her appearance at the hearing.  (Richard Note:  However, given these numbers, this is a huge argument for simplification to reduce costs.  Wayne agrees.)

Other examples of these cases include:

• Child custody or visitation hearings where the client provides the necessary witnesses and there are no allegations of substance or physical abuse
• Small claims court hearings where the client provides the necessary evidence and witnesses
• Federally subsidized housing, public housing, and private landlord/tenant hearings where the client wants more time to move out or can provide receipts showing that the rent was paid.
• Hearings to prove eligibility for Medicaid, SSI (age based), unemployment, welfare, and food stamps where the client can provide proof of income and other eligibility criteria; also SSI and SSA overpayment hearings where the client has a valid defense.
• Temporary or permanent restraining order hearings in abuse cases where the client provides the necessary witnesses and other evidence
• Enforcement of child custody and support order hearings
• Expungement hearings
• Traffic ticket hearings
• Chapter 7 bankruptcy hearings
• Other cases where the client can gather the necessary evidence

(Richard Note: Please internalize  and apply this this list in future analysis and projects)

G.     Proposed Delivery System for Serving Moderate Income People

The following program could be initiated by a local bar association. It would be open to any attorney or law firm that met the standards set by the bar, including recent admittees. Attorneys would not have to have experience to participate. The attorneys would be responsible for establishing the practice. They would have to agree to charge flat fees for most services and practice unbundled law. The bar association would provide training, marketing assistance and recruit a panel of experienced attorneys who would counsel the providers for a low hourly fee.

The bar would provide training on the standards such as adding the bar as a beneficiary to the provider’s malpractice insurance, establishing a complaint resolution process, and making a commitment to serve moderate income people. The bar could even limit participating attorneys to serving people below of 300 percent of poverty, if necessary to overcome objections from other bar members. It would also provide training about delivering unbundled services.

The bar would establish a website where participating lawyers would be listed as well as the standards and the complaint resolution process. The bar would publicize the program and refer people to the website. It would also urge the courts, legal aid programs, law libraries, community libraries, and the bar lawyer referral service to refer clients to the website. Of particular importance, the bar should ask its members to refer people to the website, when they could not afford the members’ services. Participating attorneys could use the panel of experienced attorneys to review their documents and pleadings, learn about court practices, advise their clients, and answer questions about the law, etc.

This model meets the criteria for scale:

1. Services are fully supported by fees paid by clients
2. Most services are unbundled.
3. Services can be delivered by recent admittees to the bar and others establishing a new private practice.
4. Providers can provide these services anywhere in the U.S, as bar associations cover all areas.
5. Providers receive marketing assistance from bar associations, courts, law schools, legal aid programs, libraries, and other members of the bar.
6. Providers can purchase consultations from experienced practitioners recruited by the bar.
7. Providers can establish the unbundled private practice on their own so long as they receive marketing and experienced attorney support.
8. Providers must use the technology required to maximize efficiency.

This program will also provide valuable benefits for participating bar associations. It will help voluntary bar associations convince more recent admittees to join their associations. It will generate good will for the bar from a large population that currently does not trust lawyers. It will provide jobs for recent law school graduates. And, most importantly, it will make access to justice more of a reality.  (Richard Note:  I just want to emphasize how impotant it is to upgrade the lawyer referral systems to meet these needs.  Wayne thinks this new system should be kept separate.)

[1] This includes document generators for the production of court pleadings and legal documents, step-by-step guides for handling a case until completion; videos of typical court hearings; instructions for preparing for hearings, etc.

[2] See http://www.americanbar.org/content/dam/aba/migrated/media/youraba/200707/07_446_2007.authcheckdam.pdf

[3] These constitute the majority of court cases involving moderate income people.

[4] See www.directlaw.com.

[5] See https://www.kentlaw.iit.edu/institutes-centers/center-for-access-to-justice-and-technology/a2j-author

[6] See, for example, http://www.illinoislegalaidonline.org/

[7] See, for example, http://www.dccadv.org/img/fck/Protection%20Order%20Brochure.pdf.

[8] See D. James Greiner & Cassandra Wolos Pattanayak, What Difference Representation? Offers, Actual Use, and the Need for Randomization, Yale Law Journal, Vol. 121, 2011 at http://biolawgy.files.wordpress.com/2011/03/what-difference-representation.pdf