UNBUNDLING: THE FUTURE OF THE PRACTICE OF FAMILY LAW?
The new flavour on the family law litigation block is “unbundling”. Don’t stop reading! We trial lawyers have been doing this for centuries. It really means nothing more than accepting a limited retainer to accomplish a specific outcome.
At the most basic level, the distinction between barristers and solicitors, even in our jurisdiction where the two professions are merged, is a kind of unbundling. Solicitors will act in a partnership breakup to the point of dispute, at which point they might hire a trial lawyer to assist to resolve the dispute.
Collaborative Family Law is a type of unbundling. A collaborative lawyer agrees to act throughout the negotiation of a family law dispute, pursuant to a written agreement with the client, that if the matter needs to go to court, the lawyer must resign. A collaborative lawyer will make it very clear that he or she cannot act beyond the point of negotiation and agreement.
I acted in a complex and lengthily court trial where business valuation experts were called by both sides to value a family business. The opposing lawyer brought in a colleague for the sole purpose of examining and cross examining the experts on their opinion evidence. The strategy was effective and compelling, because the colleague was not part of the rest of the dispute, and could concentrate on the one issue. For that lawyer, his was an unbundled retainer.
Much of the impetus for the interest in unbundling comes from the concern of the legal profession around the issue of access to justice. With more and more unrepresented litigants coming before the courts, the thought is that perhaps some of those persons could afford some assistance along the way. Assistance could be at the initiation of a family law matter, where the client just wants to know what his or her rights, obligations, and next steps are. Also, there are those parties who feel they can survive the court system but just need some help, either with drafting documents, understanding the court process, or understanding what happens at the trial. Even where the parties have negotiated their own agreement, they might need independent legal advice when signing the agreement.
Resolving a dispute does not require a long term relationship with a lawyer. Often, high conflict matters that take many years to resolve, could use a breath of fresh air and a new relationship – not because the lawyer is incompetent, but because lawyers and clients get locked into a process that seemed to suit them both in the beginning, but after time seems to the client to cost a lot of time and money with no visible result to show for the effort. I’m sure that all the lawyers reading this will be able to give examples of clients who have come to them after years of service and thousands of dollars in legal fees who will say, ”I have spent all this money and have accomplished nothing”. The answer of the new lawyer should be, “Of course you have accomplished nothing, the accomplishment comes with a judgement at the trial or the execution of an agreement”. The new lawyer can sometimes look like the hero they really are not, by bringing a new approach and a new voice into the dispute.
I have been unbundling legal services for years. I offer a one-time initial consultation for persons who either do not know what they should do next, or who want a second opinion. I make it very clear that I am not equipped to litigate because I have limited my practice to exclude litigation. I find that people are comfortable with the idea that they do not need to pay a big retainer at that stage, but need only pay for a road map of where they go from here.
I will also draft a formal Separation Agreement in a situation where the parties have agreed on all the essential matters before one of the parties retains me. I cannot act for both parties in that situation, so I take instructions from one of the parties and suggest the other party retain a member of the Collaborative Family Law group to advise him or her on the agreement.
Legal Services ("Legal Aid") has established a tariff for mediation of family disputes for eligible litigants. One of the weaknesses of that program is that once an understanding is reached by the parties, it is difficult to find a lawyer who will draft the formal agreement at a price that can be afforded by the parties. This is an example of a service that needs to be unbundled.
So 2016 is the year of the unbundled services. Care must be taken by lawyers to ensure that the limits of their services are clearly set out in a written retainer, but after that unbundling offers a clear benefit to the client and to the lawyer.
The take away for lawyers is, “Try it. You will like the concept of limited retainer”. The take away for clients is, “You don’t have to marry your lawyer to resolve your dispute”. Clients need to be taught to bring up the subject of how much work they require a lawyer to do for them, and to ask what that work will cost. Lawyers, make sure that you have a written agreement with the client clearly setting out the limits of your retainer and the cost of your service.