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 lawyer’s professional obligations when considering the provision of unbundled legal services under limited scope retainers and directs lawyers 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 lawyer for part, but not all, of a client’s legal matter by agreement between the lawyer and the client (r. 1.1-1 of the Rules of Professional Conduct). For example, under a limited scope retainer, the lawyer and client may agree that the lawyer will provide the client with one or more of the following legal services: document review or preparation; legal research; legal advice; legal coaching; or representation at a specific stage of a matter.

Assess Competence to Provide Limited Legal Services

An agreement to provide legal services under a limited scope retainer does not exempt a lawyer from the duty to provide competent representation. Accordingly, prior to accepting a limited scope retainer, the lawyer must carefully assess whether, under the circumstances, it is possible to render those services in a competent manner. As in any retainer, the lawyer should consider the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation (r. 3.1-2 [7A]). 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 lawyers 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 lawyer’s expertise for the lawyer to offer legal services pursuant to a limited scope retainer. The lawyer should also consider the client before agreeing to provide unbundled or limited scope legal services. For example, a lawyer 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 rule 3.2-9, the lawyer should carefully consider and assess if, under the circumstances, it is possible to render those services in a competent manner (r. 3.2-1A.1 [5.2]).

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

Prior to providing legal services under a limited scope retainer, rule 3.2-1A of the Rules requires that the lawyer advise the client honestly and candidly about the nature, extent, and scope of the services that the lawyer can provide. Where appropriate, the lawyer 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 lawyer 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 lawyer must confirm the services in writing and give the client a copy of the written document when it is practicable to do so (rule 3.2-1A.1).[1]  This is generally accomplished by way of a written retainer.  In certain circumstances, such as when the client is in custody, it may not be possible to give him or her a copy of the document.  In this type of situation, the lawyer should keep a record of the limited scope retainer in the client file and, when practicable, provide a copy of the document to the client. When the retainer is complete, a lawyer should ordinarily also confirm this with the client in writing (r. 3.2-1A.1 [5.1]).

Consider Communication Issues

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

Where the limited services being provided include an appearance before a tribunal, the lawyer should consider whether the existence of the limited scope retainer should be disclosed to the tribunal.  Specifically, a lawyer 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.  Where appropriate under the rules of the tribunal, the lawyer may consider providing notice to the tribunal that the retainer is complete.

A lawyer who is providing legal services under a limited scope retainer should also consider how communications from opposing counsel should be managed.  The lawyer should consider whether to obtain instructions from the client to disclose the limited nature of the representation to opposing counsel (r. 3.2-1A.1 [5.1 and 5.3 to 5.4]).  Unless the opposing lawyer receives written notice of the limited nature of the legal services being provided by the lawyer and the approach, communication, or dealing falls within the scope of the limited scope retainer, an opposing lawyer may, without the consent of the lawyer, approach, communicate, or deal directly with the person on the matter (r. 7.2-6A).

Resources and Additional Support:

The following resources offer more information on effectively managing limited scope retainers and include practical tools such as client handouts, checklists, and precedent retainers:

Law Society of British Columbia, “Managing the risks of a limited scope retainer”

LawPRO®, Limited Scope Representation Resources

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

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

 

Lawyers 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] Lawyers should note that there are some exceptions to the requirements of rule 3.2-1A.1.  These exceptions are set out in rule 3.2-1A.2.