Unbundled legal services: a view from the LSCP

Last year, the Consumer Panel’s tracker survey found that one in five consumers were ‘unbundling’ their legal services. In its simplest terms, ‘unbundling’ separates a package of legal services into parts or tasks. The consumer and the legal services provider then agree which parts of the package the provider will provide, and which tasks the consumer will undertake. For example, the client may agree to take on responsibility for some of the documentation preparation.

In September 2015, the Panel and the Legal Services Board (LSB) published joint research carried out by Ipsos MORI into the provision and perceptions of those involved in using unbundled legal services. The research found that, in general, unbundling worked for all parties involved, although it tended to be more suitable for consumers who have the skills to take on tasks. Consumers found it to be an effective way of saving on costs and, to some extent, empowering them. Providers saw it as one way to meet the rising challenge of increased self-lawyering .

The research raised a number of questions, so the Consumer Panel brought a number of organisations and individuals together in September 2015 – regulators, representatives, the Litigant in Person Support Strategy and third sector advice bodies. It was not long before several clear themes emerged:

The ‘fear factor’ The impact of the perceived risks in delivering unbundling legal services, questions around professional indemnity insurance (PII) implications, how complaints would be handled, and the potential for breaching professional standards – these were all raised as concerns.

Of the practitioner firms interviewed in the research, there were mixed attitudes towards risk, and some tended to acknowledge the potential risk in terms of negligence. But providers indicated that the extent to which they would unbundle depended on the extent to which they felt they could manage the risks.

Client capability This was really looking at whether providers have the skills needed to judge accurately whether or not a client can manage unbundling their service. And do clients, in turn, have the skills and confidence? This was a theme we identified in an earlier piece of research on online divorce services. Those who used the services tended to have positive outcomes, but it was a self-selecting process based on whether or not the consumer felt that their situation was suited to it and whether or not they felt that they were capable. In a similar way, providers of unbundled services were assessing whether or not consumers could manage the composite parts of their case themselves, including the impact of the understandable absence of emotional objectivity on the part of clients.

Division in responsibilities A specific concern raised by consumers was the lack of clarity about who was responsible for what. This really stressed the continued need for firms to maintain diligence in capturing the agreement in writing, not least for them and their client’s benefit, but for evidentiary matters should a complaint ever end up with the Legal Ombudsman.

This clarity is essential. Much of the media reaction to the research was critical around this element, though it also touched on the issues raised above, such as client capability, levels of risk and regulatory expectations versus regulatory reality. A recent case has gone someway to address these issues: in Minkin v Lesley Landsberg (practising as Barnet Family Law) [2015] EWCA Civ 1152, the court threw out a negligence claim brought by a client against family lawyer Lesley Landsberg in respect of a limited retainer. The judgment read:

It goes without saying that where a solicitor acts upon a limited retainer, the supporting client care letters, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client’s specific instructions. It may well be that with further passage of time, tried and tested formulas will be devised and used routinely by practitioners providing such a limited retainer service (para 77).

However, it is also worth noting that an inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client.

Unbundling in the third sector Although the research focused on paid-for services only, attendees at our workshop representing the third sector were quick to acknowledge that they had been providing unbundled services for some time due to the funding constraints and limitations on services. Consumers have been using these services because the perceived cost of using a lawyer is too high, and because they were unaware that unbundling was an option. What they did recognise however was that the advice sector was much better prepared for providing the emotional support that many litigants in person need, a need which increases as litigation continues.

Partnership Finally, one of the themes which ran through the workshop and beyond was that of the importance of partnership. There seemed to be several points in service provision where it was suggested that partnership could benefit all parties – advice providers, clients, lawyers – in ensuring a holistic, viable and affordable service could be provided. For example, it was recognised that many consumers immediately approach advice agencies due to perceptions around the cost of hiring a lawyer. Yet, though advice agencies can provide the administrative and social support a consumer may need, they are not always equipped to provide the legal services.

So what’s next?

For the Panel, we would really like to see support for unbundling from representative bodies, in consideration of client capability, and further advice on dealing with the risks identified (such as PII matters). We are already aware that the Law Society is incorporating a question on the provision of unbundling into its professional survey, and its joint research project with the LSB and the Legal Education Foundation into legal needs will also serve to provide more data. It would also be helpful if there could be a review or some case studies from the Legal Ombudsman on unbundling, perhaps touching on client capability, with a view to informing clearer guidance for providers.

What we really want to see is more on partnership. To enable the transfer of cases would it be beneficial for the voluntary sector to be able to point towards either a direct access to a lawyer that provides unbundled services? The Litigant in Person Support Strategy includes future reviews of unbundled work, and there is a series of developments across the not for profit and pro bono programmes. It is partnership initiatives such as these that are most likely to tap fully the benefits of unbundling while making sure that it is only used by those who can really benefit.