Unbundling

In family and employment work, small claims, housing and building disputes consumer claims, there is huge scope for unbundling.

This means that the lawyer is not instructed privately, on the basis of a traditional full service retainer but just brought in as required.

The client remains a litigant in person and seeks expert advice as required.

That advice should include helping the client to keep those actual costs down.

1 What is the issue?

Many of us are unlikely to be able to afford to instruct a lawyer privately on the basis of a traditional full service retainer. They may, however, wish to instruct a lawyer under a limited retainer for a particular aspect or aspects of their case. Increasingly firms are introducing some level of ‘unbundled’ services as a more affordable alternative to the traditional retainer.

2 What is unbundling?

‘Unbundling’ is used to describe provision of separate  acts of legal assistance under a limited retainer, rather than a traditional full retainer where a lawyer typically deals with all matters anticipated from initial instructions until the case is concluded. It is sometimes referred to as ‘a la carte’ legal services. Unbundling could be

• providing  document templates
• providing separate specific advice about a specific step in a case
• checking or drafting documents
• advocacy or provision of a Mackenzie Friend

Unbundling is client-led so the lawyer does accept service of documents, send out correspondence or otherwise communicate with third parties, does not incur disbursements and does not go on the court record. However, there are some limited retainer models that that are closer to a traditional retainer in terms of the service offered to the client but only for clearly defined elements of the case.

3 Areas of law where unbundling may be appropriate

• Family law:
  • Drafting the divorce petition
  • Form E financial statements
  • Consent orders and, advocacy
  • Assisting clients in relation to contested proceedings may be possible on an unbundled basis provided that the limits of the retainer are strictly defined and adhered to

• Actions against the police
• Consumer claims and general civil disputes

• Housing law
  • Rent disputes and advice on proceedings the first-tier tribunal (Property Chamber)
  • Issues within the jurisdiction of the Leasehold Valuation Tribunal

4 Professional duty to clients

You must also act in your client’s best interests. In some circumstances unbundling may not be appropriate, such as in cases of great complexity or where you have concerns that the client does not have the intellectual or emotional capacity to carry out tasks that fall within their responsibility. In such cases you should carefully consider whether and to what extent it is in your client’s interests to provide an unbundled service.

5 Professional duty to the court

If you have concerns that your client may be seeking or intending to mislead the court, you must advise them against this and you should consider ceasing to assist them if they refuse.

When providing unbundled services you should not go on the court record as acting solicitor, even if you are providing advocacy (see advocacy section below). In these circumstances the court should not be able to impose any additional duties that would arise from the conduct of litigation as your client retains conduct of their case.

5 Pay as you go

A ‘pay as you go’ system may be applied which requires the client to pay for the advice they receive, as they receive it. Fees might be charged, for example, on the basis  six-minute units. Each advice session is treated as a separate event and payment for each one. This is a straightforward system with no need for payments on account or holding clients’ money.

• Fixed fees

Agreed fees (often referred to as fixed fees) are appropriate for separate items of work, including advocacy and preparation for a hearing.

7 Suggested schedule of services provided and not provided

Services might include;

• free use of library and/or online resources
• revision of document templates
• advice to assist the client to progress the matter themselves
• assistance with form filling and drafting letters and documents, including basic pleadings
• checking documents and forms completed by the client
• explanation of the court process and nature of court proceedings
• advocacy for a specified hearing

• credit

6 Unbundled representation at court

You may wish to consider providing representation at court on an unbundled basis. This could involve taking on a traditional advocate’s role without any prior involvement with the case or where you have previously provided unbundled advice as described above.

You may also wish to consider provision of a professional McKenzie Friend service.

Where the court has directed that a bundle should be lodged for a hearing, it is difficult to see how an advocate can properly carry out their function if the bundle does not exist or is deficient.

6.2 McKenzie Friend

As an alternative to traditional advocacy you may wish to consider providing your client with a professional McKenzie Friend service in appropriate cases.

The role of a McKenzie Friend is to provide advice and support to a litigant in person during the course of a hearing, but a McKenzie Friend has no right to address the court, save for exceptional circumstances where the court sees fit to grant leave.

Further information about the role of McKenzie Friends in the civil courts can be found in the Practice Guidance dated July 2010 by the master of the rolls and the president of the Family Division.

At Hylton-Potts we operate this unbundling service and have huge expertise and experience in making it work satisfactorily and giving excellent value for money.

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