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Chill effect on unbundling unnecessary

Focus on: Family law
|Written By Marg. Bruineman

A chill that swept through the legal profession over the provision of unbundled legal services after the decision in Meehan v. Good earlier this year deflects the main issue in the case, say some lawyers.

In February, the Ontario Court of Appeal overturned a motion judge’s decision that had dismissed a negligence claim against a lawyer, and ruled that the lawyer had failed to give adequate advice to a client.

The case revolved around the duty of care the lawyer owed the client to examine all the circumstances and provide advice about the limitation period.

Unbundling or limited-scope retainers allow lawyers to provide legal services for part of a file. It’s considered an especially helpful tool in family law where most venture to court unrepresented largely because they cannot afford the services of a lawyer.

A limited-scope retainer allows them to access legal help for just part of the file and incur fewer expenses.

“[T]here’s no evidence to suggest that providing unbundled services or legal coaching is increasing your risk of liability for either a civil malpractice claim or a complaint to your regulator,” says Nikki Gershbain, national director of Pro Bono Students Canada.

“And yet this fear continues to be one of the main reasons why lawyers are reluctant to offer unbundled services. The lawyers I’ve seen who are basically trying to develop this practice model into a business model are telling me they are extremely careful about this. They also say that their clients are happier.”

Gershbain is a fellow with the National Self-Represented Litigants Project, where she is exploring legal coaching as a form of unbundling for use in family law and she’s developing training for lawyers to create effective legal coaches in a new specialized area.

Gershbain describes unbundling as a safe and viable practice area and a wonderful access-to-justice model that could result in faster, better and less stressful outcomes.

And there is clearly a need, with an estimated 57 per cent of family law litigants unrepresented in Ontario in 2015.

In her work, Gershbain has found that Meehan did cause many in the profession to pause and take notice.

She has been surveying and interviewing lawyers across the country and found that a main concern for lawyers when it comes to providing unbundled legal services is liability.

She points out that there are years of research, case law and policy changes that facilitate the use of limited-scope retainers. And they offered no indication of an increased rate of either a negligence claim or a complaint to the law society.

She’s also found that lawyers who have successfully offered unbundled services screened out candidates who were not appropriate for unbundled or coaching services and revisited the retainer as they did the work and adjusted it if necessary.

The process also included documenting all the information and advice given and providing a written notice indicating the end of the relationship.

John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family at the University of Calgary, says the decision only emphasizes the duty of care required by lawyers in all the work they do.

Unbundling does not mean less effective or lower-quality legal services and advice.

“This case is considered to have had a chilling effect on those who are prepared to consider unbundling their services,” observes Boyd.

“The duty the lawyer owed to an unbundled client is exactly the same duty as the lawyers owe to the traditionally retained client; neither of them are any different. The reason why [Meehan has] had some prominence is I think that this is one of the very few appellate decisions from anywhere in Canada to consider the duty of care owed by a lawyer in the context of a limited-scope file.”

That duty of care, he adds, requires advising the client on all matters related to the file.

That includes doing the conflicts check, advising about relevant issues such as limitation periods and due dates as well as issues that have a “do-or-die impact” on a client’s claim or right to defend a claim.

The decision in Meehan came at a time when there has been a great amount of attention paid on the limited-scope approach. The Alberta Limited Services Project was recently launched, aimed at encouraging lawyers to provide unbundled services. Research is also underway to determine if unbundling provides increased access to justice and the organization is gauging the satisfaction level of clients and lawyers.

There is also a pilot project underway in British Columbia to create a roster of lawyers providing unbundled services.

“The overall context is that there has been a national increase in interest in limited-scope work arising from all the reports that were published in 2013 by the CBA by the National Action Committee on Access to Justice by Julie McFarlane’s group, all of which included mention of limited-scope services or unbundling as a way of addressing lawyers’ incurably high rates that push traditional retainers outside the affordability of even middle-income Canadians,” says Boyd.

The Law Society of Upper Canada supports the approach and acknowledges the need for alternative approaches in family law.

“The Law Society recognizes the importance of limited-scope retainers. They enhance access to justice by giving clients flexibility in choosing when they want or feel they need, a lawyer or paralegal,” says Treasurer Paul Schabas.

“Our rules provide guidance to licensees on how to provide limited services effectively, and we support and encourage their use where appropriate.”

LawPro advises lawyers to take precautions to limit their exposure when offering limited-scope retainers.

The legal insurer is concerned that unbundling could lead to more claims, because the biggest cause of claims against lawyers involves communication and inadequate investigation or discovery of facts.

It provides a list of suggestions to reduce exposure when offering unbundled services.

They include identifying the specific work to be done, confirming the scope of the limited retainer in writing and clearly documenting work and communications, being careful with communications when opposing counsel is acting on an unbundled basis, and recognizing that unbundled legal services are not appropriate for all lawyers, all clients or all legal problems.

Note: The online version of this story was updated to reflect that Gershbain is a fellow with the National Self-Represented Litigants Project.


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