Are “Unbundled” Legal Services in Family Law a Good Thing? Time Will Tell
The move in Canada toward “unbundling” family law services is undoubtedly growing. However, clients need to be aware that there are distinct pitfalls involved in this kind of partitioning of family law services, and should take care to ensure that in all instances their legal interests are protected.
First things first: What are “unbundled” legal services, exactly?
All legal processes in family law – whether traditional litigation or else negotiation, mediation, arbitration or collaborative family law — involve a string of procedures and processes which must be followed. In some cases a client may be unable to have a lawyer’s full representation throughout the entirety of the matter (either due to the costs or other reasons). Therefore, some lawyers are willing to provide paid legal assistance during only part of the process, for example by preparing a separation agreement, by attending on the client’s behalf at negotiation or mediation, by taking care of the initial preparation of court materials, or by attending on the client’s behalf during distinct stages such as a specific motion before the court, or at a case conference. Collectively, these kinds of one-off tasks are known as “unbundled” legal services in family law, and are provided to the client pursuant to a limited retainer which sets out the scope and duration of the services to be undertaken by the lawyer.
Essentially, unbundled services represent a middle-ground between the client having no representation at all, versus having full representation by a lawyer.
While this model may seem appealing to or may work well for some clients, until recently there have been no legislated standards that expressly address the specific level of care or competence that a lawyer who provides such unbundled family law services must bring to the task. (Currently, all Ontario lawyers are subject to the Rules of Professional Conduct which govern lawyer conduct and duty of care in a general sense. These apply to all lawyers and all transactions. However, there have been no specific provisions dealing with unbundled services per se.)
This changed late last year, when the Law Society of Upper Canada (which regulates all Ontario lawyers and paralegals) updated the Rules of Professional Conduct in an attempt to address this void. Recent amendments now provide guidance for limited-scope retainers, and make it clear that lawyers are to provide the same standard of service and competence as if representing the client every step of the process. This includes specifically advising the client of the nature and scope of the retainer, and providing confirmation of services in writing in most cases, with a copy to be kept on-file. There are also new rules relating to how opposing lawyers are to communicate with lawyers working on limited retainers.
Although in terms of making room for the unbundled services model these amendments to the Rules are a step in the right direction, they are still only the first of many: for example the Law Society must still approach the courts to hammer out any related procedural issues that could or will arise in the context of litigation. Other potential problems inherent in this option may still come to light, and of course there is always the potential that disputes will arise between the client and his or her chosen lawyer, in connection with the particular scope, nature, duration and cost of the services that were agreed to be provided.
Still, the Ontario family law system sees more than its share of unrepresented litigants; the option to use a lawyer for unbundled services might help bridge the divide between those who can afford competent legal representation, and those who struggle to do so. Still, the movement toward allowing this model is still relatively new, and it is subject to growing pains and adjustments. Clients need to have all the information, and need to weigh the pros and cons.