Unbundled legal representation–defined as self representation with limited help from an attorney–has become increasingly popular during the recent period of economic stagnation. The theoretical purpose of partial representation is simple: the party uses a lawyer only when most needed, thereby reducing the party’s legal fees. Unfortunately the theoretical benefits often diverge from practical, real-life outcomes. This article helps litigants understand the advantages and disadvantages of unbundled legal services, as well as how to determine when partial representation is appropriate.
1. The Advantages. The advantages of unbundled legal services are relatively obvious yet worth acknowledging. Primarily and most obviously, this style of representation can be much less expensive than hiring an attorney in the traditional fashion. The client and attorney divide work between themselves, potentially reducing the number of hours the attorney spends on a given matter. The cost reduction allows economically underprivileged clients access to an attorney when fulltime representation would be cost prohibitive. Middle-class clients in turn use unbundled legal services to hire more expensive attorneys than they could otherwise afford. Everyone potentially gets more justice for the dollar when partial representation works properly.
2. The Disadvantages. Sadly unbundled legal services often result in cost increases rather than decreases. From the perspective of an attorney, teaching a litigant to perform a task can be more time consuming than directly handling the matter. Worse yet, an unpracticed litigant, despite an attorney’s help, will often unintentionally make mistakes. The lawyer then spends considerable client funds trying to fix the unintended errors.
Worst of all, the errors from partial representation sometimes lead to disastrous court outcomes a lawyer simply cannot fix after the fact.
3. Dispositive Factors. Three general factors seem to determine whether unbundled representation is a good choice for a litigant: a) the relative importance of the lawsuit to the litigant, b) the complexity of the legal matter, and c) the litigant’s ability to represent him/herself.
A. Relative Importance of the Lawsuit. The relative importance of the lawsuit is the primary factor when deciding the appropriateness of any level of partial or self representation. The higher the stakes in the legal dispute, the more an attorney should be involved. The opposite is true as well: the less there is at stake, the easier it is to justify unbundled legal services or self representation. For example, it makes no sense to hire an attorney for full representation in a case worth $2,000. Most likely, the attorney’s legal fees for full representation would exceed the amount in dispute, and losing the case would be a relatively nominal setback for the litigant. On the other hand, full representation is imperative when the stakes are high, such as dissolution of a high-asset marriage worth millions of dollars.
B. Complexity of the Legal Matter. The more complex the legal matter, the more strongly a litigant should consider hiring full legal representation. If the matter or legal task is simple, an attorney can probably successfully coach the litigant through the process. Whereas more complicated tasks usually require that the attorney handle the matter directly. This is true as a result of at least two reasons. The likelihood of the litigant making a mistake increases with the complexity of the task, regardless of whether an attorney provides some form of assistance. And an attorney can complete complex legal tasks relatively quickly in comparison to the time it takes to teach a novice litigant to do it.
C. Litigant’s Ability to Represent Him/Herself. Finally, unbundled legal services and self representation are less appropriate for parties who have difficulty performing legal tasks themselves. Parties might speak English as a second language, have learning impairments, or be too busy as single parents. These types of clients face an increased likelihood of frustration, mistakes, and overall poor outcomes when they attempt to negotiate legal processes on their own. Fair or not, more capable litigants are better candidates for unbundled legal services.