Unbundling Family Law Services: Why More Family Law Attorneys Should Do It
By Angela Arkin, Director of the LawYourWay℠™
Judges sitting in family court in Colorado are encountering a large and ever growing number of self-represented litigants. Many of these parties are not indigent, but they are not hiring lawyers to assist them. These non-indigent litigants generally fall into three categories: 1. They can’t afford traditional legal representation because of their financial circumstances (low wages, significant consumer debts, high student loans, etc.); 2. They are of moderate means, but do not wish to spend all of their disposable income on legal fees; or 3. They wish to reach an amicable resolution of their family law matter, and are afraid that hiring an attorney will make their case more complicated and/or expensive.
If a family court case is litigated, Judges have a duty enter equitable rulings regarding financial issues and support for dependents, to act in the best interests of children when their parents cannot agree, and to protect children who are being harmed by their parents’ actions or inactions. In cases that settle, family court judges cannot reject separation agreements or stipulated parenting plans unless the financial provisions are extremely unfair to one spouse, the parenting provisions would endanger the minor children, or the support provisions would deprive dependents of legally required support. The court interventions that are mandated do not include the duty to reject ill-advised or poorly written agreements that could prove impractical or unenforceable in the future. Indeed, the court is prohibited from providing the parties with legal advice. Therefore, from the judge’s side of the bench, self-represented litigants bring many challenging concerns:
- They do not know the law, so they are unable to determine whether their wishes for the resolution of the case are reasonable, equitable, or allowed by law. This can increase the likelihood of litigation, which can be difficult for parties and harmful to children.
- They do not know the rules of evidence, so they struggle to prepare their case in a way that allows the court to admit the evidence necessary for the court to do equity. The court cannot issue good decisions when the judge does not have sufficient information to determine what is fair.
- They do not understand the rules and procedures that must be followed by litigants to participate in the process, meet court deadlines, and timely complete required disclosures and any discovery requested. Sherlocks, Family Court Facilitators, judicial assistants and judicial officers often spend significant court time and resources helping self-represented litigants understand the litigation process.
- They do not understand when experts need to be appointed to assist the court in understanding and evaluating contested issues, and/or what the experts do in their evaluations. If there is a significant contested issue, such as abuse allegations against a parent or valuation of a significant asset, when there is no expert, the court is left to guess at an appropriate resolution.
- They do not know how to draft an agreement resolving their contested issues that is clear as to their intent, and is specific enough to be enforceable by the court if one or both parties fail to comply. The court cannot reject or unilaterally revise written agreements absent a serious legal, equitable, or child protection flaw.
These litigants need affordable legal advice.
Over approximately the last 13 years, the Colorado Bar Association(CBA), the Colorado Judicial Branch (Court), and Colorado Legal Services have made great efforts to address the problems caused by and to the rising tide of self-represented litigants. The most prominent step was the joint effort to create one of the first Access to Justice (ATJ) commissions in the United States. The Colorado ATJ has taken countless actions to assist self-represented litigants, including holding hearings on the access to justice crisis, creating local ATJ Committees throughout the State, and creating significant incentives for lawyers to do 50+ hours per year of pro bono work. The local ATJ Committees have also had a great impact, including recruiting volunteer lawyers to provide legal information and advice to litigants at clinics, self-help centers and local bar events.
The Court has created a state-of-the-art website with lots of user-friendly forms and instructions. They also hired an ever-increasing number of Court Facilitators and Self Represented Litigant Coordinators (Sherlocks), made changes to rules and procedures to give courts more flexibility in assisting self-represented litigants, and have made countless other efforts to assist self-represented litigants through Supreme Court commissions and committees. Despite these efforts, currently, according to the Court, approximately 70% of Domestic Relations (DR) and Allocation of Parental Responsibilities (APR) cases filed in Colorado have zero or only one attorney involved. However, self-represented litigants, especially in the family law area, have become too numerous and too needy to be fully served by volunteer lawyers, Sherlocks or Court Facilitators.
The CBA has created a “Toolkit” for attorneys wishing to provide unbundled legal services, and has an “Unbundled Legal Services Roadshow” which has made countless presentations on these issues to lawyers and law students throughout the state. There is a “Modest Means Committee,” that has implemented countless legal services projects, and continually seeks new ideas on how to provide services to self-represented litigants. A small but growing number of family law attorneys have embraced unbundled legal services, based on these efforts.
There is also a CBA committee looking at whether Colorado should allow non-lawyer professionals to fill the market for affordable legal services, since the need continues to be overwhelming, and too few attorneys are currently providing same. Family lawyers have expressed concerns that creating a new profession such as a “Limited Liability Legal Technician (LLLT),” or other similar “paralegal plus” type professional could cause more problems for self-represented litigants than it solves, but the alternative, convincing more licensed family law attorneys to meet the needs of this ever growing moderate means population, has not yet been successful.
The Colorado Rules of Professional Conduct allow attorneys to provide ‘unbundled legal services.’ Colo. RPC 1.2(c). A lawyer may provide limited representation to self-represented parties as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b). There are three key issues for the lawyer to consider in deciding to offer unbundled legal services: (1) the limitation on the services provided by the attorney to the unbundled client must be reasonable; (2) the client must give informed consent to the limitation of services; and (3) the attorney must advise the court if he/she is drafting or “ghostwriting” court documents, other than the state forms available on the Court website. Whether the limitation of services provided is reasonable will depend on the facts and circumstances of the case, but there is not a specific rule or significant body of case law that defines what is a reasonable limitation. Arguably, the reasonableness of the limited representation would require the lawyer to consider the following:
- Is the case relatively simple, or complex?
- Does the client seem capable of understanding legal advice and following instructions?
- Does the attorney have a reasonable amount of time to assist the self represented party in addressing the matter?
- Is the client going to be comfortable with the limited communication with the lawyer that often accompanies unbundled legal services?
Family law attorneys could have more confidence that their liability does not significantly exceed the scope of the services purchased by the unbundled client if the Court provided specific guidance about the parameters of their professional duty. But lawyers could also consider other models for providing unbundled legal services as an alternative to trying to adapt standard forms of legal representation to the needs of the unbundled client. This would arguably limit the attorney’s liability while providing services to this underserved market.
There are a number of innovative ideas across the country regarding providing affordable unbundled legal services. One of these alternative models is the LawYourWay℠™ (SRRC) at The Harris Law Firm. We created the SRRC to provide unbundled legal services to individuals who are considering handling their legal matters without hiring an attorney. This new legal clinic allows those with family law issues to access high level divorce and family law advice while still representing themselves. Sort of a “doc in a box” (urgent care clinic) for pro se parties.
The SRRC provides legal information and advice, but we don’t enter an appearance, we don’t prepare or file documents, and there is no ongoing relationship with the self-represented party. We offer what we consider to be reasonable rates, and the self-represented client pays as he/she goes: there is no retainer. This allows each litigant to manage his/her own legal fees and costs, and get as much legal help as he/she needs to resolve the matter in the best possible way.
The SRRC does not provide legal representation. If there is any contact with the court or court event scheduled in the case, the self-represented client is responsible for attending that court appearance. The self-represented client signs all pleadings, disclosures and discovery, attends settlement conferences such as mediation, and negotiates and communicates with the opposing party, opposing counsel and the court. The SRRC does not conduct any independent investigation into the facts of the client’s case, and clients are notified to bring any documents with them to the consultation. We are available to consult with the client about all aspects of their case, but if at any time they wish to obtain legal representation, they will need to hire an attorney.
We consider a significant focus of the SRRC to be providing services that help clients understand the laws, rules, procedures and equities of their family law case well enough to be prepared for settlement. In addition to educating clients about the legal system, we discuss costs and benefits of their financial positions, and the impact the proposals in their parenting plan may have on their children. We always talk to clients about therapeutic resources, mediation, and other kinds of professionals who might help them resolve their case. When requested, we provide our clients with lists of professionals we believe are a good fit for their case, and we make suggestions on what might be reasonable compromises that can help them, the other party, and their children move forward in an amicable way.
Unbundled services have been encouraged by the Colorado bench and organized bar to persuade lawyers to provide more economical access to justice for self-represented parties. There are many ways attorneys can provide these services to family law litigants, but not providing them is an option that is likely to have dire consequences for our profession. At the SRRC, we are excited about and enjoying this new opportunity to be of service to self-represented parties with Colorado family law matters. We invite and encourage more of our esteemed family law colleagues to join us in the effort to provide affordable unbundled legal services to self-represented litigants.