Unbundling Legal Services: Know Your Professional Obligations

Posted: 12/12/2018

Unbundling legal services under limited scope retainers has been recognized as one way of increasing access to justice. Such arrangements offer clients a cost-effective way to obtain legal representation when they do not qualify for legal aid, cannot afford legal representation for their entire matter, or might otherwise choose to represent themselves.

This article outlines a paralegal’s professional obligations when considering the provision of unbundled legal services under limited scope retainers and directs paralegals to practical resources to support them in the provision of such services.

Understand the Definition of Limited Scope Retainer

A limited scope retainer, also known as an “unbundling” agreement, means the provision of legal services by a paralegal for part, but not all, of a client’s legal matter by agreement between the paralegal and the client (r. 1.02 of the Paralegal Rules of Conduct (“Paralegal Rules”)). Paralegals must ensure that the limited scope services provided to a client fall within the paralegal’s permitted scope of practice outlined in By-Law 4, made under the Law Society Act. For example, under a limited scope retainer, the paralegal and client may agree that the paralegal will provide the client with one or more of the following legal services: preparing motion materials and representing a client in a motion before the Small Claims Court; providing advice on a client’s interests in respect of a traffic violation under the Highway Traffic Act; or representing a client at a specific stage of a tribunal proceeding.

Assess Competence to Provide Limited Legal Services

An agreement to provide legal services under a limited scope retainer does not exempt a paralegal from the duty to provide competent representation. Accordingly, prior to accepting a limited scope retainer, the paralegal must carefully assess whether those legal services are within the paralegal’s permitted scope of practice and, if so, whether it is possible under the circumstances to render those services in a competent manner. As in any retainer, the paralegal should consider the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation (r. 3.01 of the Paralegal Rules and Paralegal Professional Conduct Guidelines, Guideline 6). This assessment should be made on a case-by-case basis.

Determine Whether Limited Scope Representation is Appropriate for the Matter and the Client

It is important that paralegals recognize that unbundled legal services may not be appropriate for all legal matters. For example, some matters may be too complex or intertwined with other legal issues beyond the paralegal’s expertise for the paralegal to offer legal services pursuant to a limited scope retainer. The paralegal should also consider the client before agreeing to provide unbundled or limited scope legal services. For example, a paralegal may be asked to provide legal services under a limited scope retainer to a client with diminished capacity. In such a situation, in addition to the requirements set out in rules 3.02(13) and (14), the paralegal should carefully consider and assess if, under the circumstances, it is possible to render those services in a competent manner (Guideline 6, ss. 3, 3.1).

Ensure Client is Fully Informed about the Scope and Limitation of Legal Services

Prior to providing legal services under a limited scope retainer, rule 3.02(15) of the Paralegal Rules requires that the paralegal advise the client honestly and candidly about the nature, extent, and scope of the services that the paralegal can provide. Where appropriate, the paralegal must also advise whether the services can be provided within the financial means of the client.

Confirm Legal Services in Writing and Provide Client with a Copy of the Documents

Reducing to writing the discussions and agreement with the client about the limited scope retainer assists the paralegal and client in understanding the limitations of the service to be provided and any risks of the retainer.  When providing legal services under a limited scope retainer, the paralegal must confirm the services in writing and give the client a copy of the written document when it is practicable to do so (r. 3.02(16)).[1]  It is advisable that this be accomplished by way of a written retainer agreement (Guideline 6, s. 11).  When the retainer is complete, a paralegal should also confirm this with the client in writing (Guideline 6, s. 12.1).

Consider Communication Issues

A paralegal who is providing legal services under a limited scope retainer should be careful to avoid acting such that it appears that the paralegal is providing services to the client under a full retainer.

Where the limited services being provided include an appearance before a tribunal, the paralegal should consider whether the existence of the limited scope retainer should be disclosed to the tribunal.  Specifically, a paralegal must be careful not to mislead the tribunal as to the scope of the retainer and should consider whether disclosure of the limited nature of the retainer is required by the rules of practice or the circumstances (Guideline 6, s. 12.2).  Where appropriate under the rules of the tribunal, the paralegal may consider providing notice to the tribunal that the retainer is complete.

A paralegal who is providing legal services under a limited scope retainer should also consider how communications from the opposing party should be managed.  The paralegal should consider whether to obtain instructions from the client to disclose the limited nature of the representation to the opposing party or, if represented, to the opposing party’s representative (Guideline 6, s. 12.3).  Unless the opposing party or his/her representative receives written notice of the limited nature of the legal services being provided by the paralegal and the approach, communication, or dealing falls within the scope of the limited scope retainer, an opposing party or his/her representative may, without the consent of the paralegal, approach, communicate, or deal directly with the person on the matter (r. 7.02(2)).

 

Resources and Additional Support:

The following resources offer more information on effectively managing limited scope retainers:

LawPRO®, “Unbundled legal services: Pitfalls to avoid”

The Canadian Bar Association (Alberta Branch), Limited Scope Retainers

 

Paralegals who have further questions about their professional obligations related to unbundled legal services under limited scope retainers may wish to contact the Practice Management Helpline. To do so, call the Law Society at 416-947-3315 or 1-800-668-7380, ext. 3315 and ask to be connected to the Helpline. The Helpline is available Monday to Friday 9:00 am – 5:00 pm EST.

 

[1] Paralegals should note that there are some exceptions to the requirements of rule 3.02(16).  These exceptions are set out in rule 3.02(17).