The Financing Litigation Series: Unbundled Legal Services


18 October 2017

By Valerie Le Blanc

This post is the first in a six-part series showcasing each of the financing models explored in the Study Paper on Financing Litigation (PDF), published on October 4, 2017, and some recent developments in British Columbia. To read other posts in the series click here.

Unbundled legal services are essentially discrete, limited legal services that a client can pay a lawyer to perform, whether on a retainer, hourly or by using some other fee arrangement. Examples of unbundled legal services include advice on legal issues or settlement offers, research on relevant cases, drafting letters or court documents, and legal coaching for court appearances. In British Columbia and across Canada, unbundled legal services are commonly used for family law matters and solicitor-type work (e.g. drafting documents). Public interest advocacy organizations also reported using unbundled legal services to offer advice and representation for low- to mid-income clients.

Highlights from the Study Paper on Unbundled Legal Services

Optimal Uses

  • Organization and case planning (e.g. writing letters, assessing initial settlement offers, explaining relevant law(s) applicable to the facts, outlining options for resolution, preparing a checklist of necessary steps and processes for client to consider);
  • Self-representation coaching (e.g. client pays lawyer for training or coaching on court procedures, including how to make proper statements, submit evidence, and examine witnesses);
  • Document drafting (e.g. court documents, contracts, or settlement agreements); and
  • Mediation and settlement negotiations (e.g. coaching for, or appearance at, mediation or negotiation sessions).

Advantages

  • Financial predictability
  • Clear expectations
  • Simplify complex cases
  • Flexibility for lawyer and client
  • Streamline judicial and out-of-court processes
  • Improved settlement and case outcomes

Disadvantages

  • Lack of continuity
  • Risk of scope creep
  • Potential for limited application

Ethics and professional responsibility considerations

  • Professional negligence
  • Lawyer-client relationship

Opportunities for systemic, structural, or legal change

The consultation participants and research highlighted five ideas where changes could be considered to promote unbundled legal services in British Columbia: enhance the British Columbia Code of Professional Conduct; develop practice resources; encourage lawyers to disclose limited-scope representation services; professional development and annual practice declaration reporting; and legal coaches.

Some Recent Developments on Unbundled Legal Services in BC (since June 2017)

  • Canadian Bar Association—BC Branch hosted its first Unbundled Legal Services Section Meeting on Wednesday, September 20th, 2017, “Introduction to Unbundled Legal Services and Unbundled Retainer Agreements”.
    • Upcoming session: Wednesday, October 18th, 2017, “Introducing the Movement”. For more information on this section, visit the CBABC Section page here;
  • Canadian Bar Association—BC Branch is hosting a Labour Law Section Meeting on Thursday, November 2, 2017, “Pintea v. Johns, Self-represented Litigants, and Tribunals”. For more information, visit the section page here;
  • Courthouse Libraries BC—Upcoming webinar on Friday, December 1, 2017, “Unbundling Your Family Law Practice”. For more information, visit the Courthouse Libraries BC website here;
  • Mediate BC
  • The Continuing Legal Education Society of British Columbia will host a rebroadcast of the “CLE-TV: A Bit of Counsel—Providing Legal Services to the Self-Represented” on Tuesday, December 5th or Thursday, December 14th, 2017. For more information, visit its website.

About the Financing Litigation Legal Research Project

The Study Paper on Financing Litigation (PDF) examines the traditional and alternative methods litigants use to pay for litigation. The cost of litigation is a significant barrier to accessing the justice system. While some disputes can be resolved outside the courtroom, litigation is often the only means to achieve an equitable result. However, a litigant’s ability to pay for the legal fees and expenses that come with litigation may become a concern before, or during, the process. Taking a legal dispute to trial is expensive. Many litigants lack the financial resources to take on the risk of an unsuccessful case.

The study paper reviews six financing models that have emerged both in Canada and internationally:

  • Unbundled legal services;
  • Third-party litigation funding;
  • Alternative fee arrangements;
  • Crowdfunding;
  • Legal expense insurance; and
  • Publicly funded litigation funds.

The study paper also identifies 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. It concludes with a chapter that briefly discusses five alternative ideas that could mitigate the rising cost of legal services and improve access to justice generally.

This project was made possible by funding from the Law Foundation of British Columbia.

Useful Links

  • Study Paper on Financing Litigation (PDF)
  • Highlights from Chapter 6—Unbundled Legal Services (PDF)
  • List of Resources—Unbundled Legal Services (PDF)

Stay tuned for our post on November 1st on the topic of third-party litigation funding!


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