UNBUNDLED LEGAL SERVICES IN BANKRUPTCY – PART ONE

17 Mar UNBUNDLED LEGAL SERVICES IN BANKRUPTCY – PART ONE

This introduces a series on what can be called unbundled law. Others call it an à la carte approach to offering legal services to individuals. The main difference with this approach is that a client represents herself for some portion of her participation in a legal matter rather than having an attorney represent her for every part.

State Family Law Courts Recognized the Problem 10 Years Ago—People Need Help and the Courts Need Help

I do family law as well as bankruptcy law. More than 10 years ago attorneys and judges started talking regularly about an unbundled law practice especially in the family law area. The reasons included that attorneys wanting to help people get access to legal advice when they could not afford it otherwise and state court judges who saw how disruptive unrepresented individuals can be to the court process started working directly to find ways to address these problems.

The state courts were and still are being overwhelmed by pro se parties, that is, people representing themselves in their own divorces, and in child custody and child support matters. This is a big problem for many courts because self represented individuals especially in family law often do not understand how a legal process works, and do not know there are critically important court rules and how strictly these rules may be enforced. Because of this cases do not go forward in efficient ways and the courts are unable to handle all the cases they are asked to handle. I also think that because of this many individuals did not get the legal outcomes they were entitled to.

The courts responded by investigating among several things how an unbundled legal practice could help such self represented litigants and the courts. In many jurisdictions now, including my own, there is a specific court rule that permits what we call an attorney to have a limited representation in a court proceeding. Without representation in a court matter being limited, the attorney is in for everything unless and until the judge releases her from the case. Sometimes the judge can refuse to release the attorney even if the client is willing to go forward without the attorney and even if the client is not paying the attorney for the work. However, with a limited representation the attorney cannot be held by the judge to stay in the case for everything.

Federal Bankruptcy Law Courts are Starting to Recognize the Problem, Too

These developments have been primarily in state courts. Bankruptcy is a legal proceeding that takes place in the federal courts. The federal court system it seems has not yet addressed an unbundled legal practice in any systematic way, at least not in bankruptcy court.

The issue is being discussed, however. It was even the topic of one of the presentations at state bar’s Bankruptcy Year In Review continuing legal education seminar two weeks ago. It appeared to me that the concept was new and troubling to most of the attorneys attending. This surprised me, but, then, I have had an unbundled legal practice for 10 or 15 years on the family law, state court side.

For several years I chaired a committee in my local state District Court to try to help the court addressed the self represented family law litigants. In that time period I attended a special, by invitation only conference sponsored by my state’s Supreme Court specifically to investigate how to assist self represented litigants.

Next?

On the state court, family law side, it is the pragmatic, practical reality that the system must help self-represented litigants – if not, the state court systems are overwhelmed by unanswered need and obstacles created by so many in the system without the assistance of legal counsel. Now, on the federal court, bankruptcy law side, the same reality may well be occurring.

Gini Nelson is a Santa Fe, New Mexico Bankruptcy Lawyer

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Jay S. Fleischman is a bankruptcy lawyer with offices in Los Angeles and New York. He can often be found on Google+ and Twitter, where he shares information about consumer protection issues and personal finance.
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