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Unbundled Legal Services and Access to Justice

By Naomi Quesnel

Tuesday, October 2, 2018

Limited scope retainers (commonly known as “unbundled legal services”) have become increasingly touted as a way to improve access to justice. An unbundling agreement consists of a lawyer or paralegal providing services for part(s) of a client’s legal matter. For example, under an unbundled legal services agreement, a lawyer may help a litigant draft and fill out forms for a hearing on a tenancy issue, but not represent the litigant at their hearing. One of the valuable ways unbundled legal services can help aid the access to justice crisis is that they can help provide access to legal services for people who make too much to qualify for legal aid, but also cannot afford to retain full legal representation for an entire legal matter. The previous treasurer for the Law Society of Ontario, Paul Schabas, has said that the law society was encouraging lawyers to support unbundling legal services because clients can pick and choose services they can afford.[1]

To give a clearer picture of how unbundled legal services could offer a useful alternative in situations where the cost of trying to resolve a legal problem is an issue, it is important to look at some numbers that shed light on how much legal services cost in Canada, and how they compare to common expenses. The Canadian Lawyer Magazine’s annual “Going Rate” legal fees survey for 2018 shows that the average hourly rates for a 1 year or less lawyer who was called to the bar in 2017 is $179.74 in Western Canada, $217.96 in Ontario, $165.00 in Atlantic Canada/Quebec and $190.51 nationally.[2] Alternatively, for an 11 to 20-year call, the average hourly rate was $371.44 in Western Canada, $387.02 in Ontario, $272.97 in Atlantic Canada/Quebec and $357.89 nationally.[3] For a clearer picture of how legal costs may add up cumulatively, the national average cost for a civil action case up to and not including trial (two days) was found to range from $10,000-$15,000, and the national average for a civil action up to and not including trial (5 days) was less than $35,000.[4]

To put these numbers in perspective, the median total income of Canadian households was $70,336 in 2015.[5] In terms of household size, in 2014, the average number of people per family was 2.9.[6] To contrast, to qualify for duty counsel/summary legal advice for Legal Aid Ontario, for example, gross family income for a family of one must be lower than $22,720 and for a family of two, $32,131.[7] For Alberta families of one and two who want to access legal aid, the annual income must be at or lower than $19,653 and $24,333 respectively.[8] In 2016, Canadians spent 29% of their total income on shelter, 19.2% of their income on transportation and 14.1% on food.[9] For a household with a total income of $70,336, this would mean they would spend around $20,397 on shelter, $13,504 on transportation and almost $10,000 on food. The cost of a two-day civil action, not including trial, at $10,000 would thus be a comparable expense relative to the total annual costs of food, shelter or transportation for Canadians. This is an onerous expense for the  many potential litigants won’t qualify for legal aid assistance, and will have to foot the costs for their legal problems. In addition, not every litigant will be able to afford the extensive hours of work performed by lawyers, particularly in drawn-out litigation which could last months to years, all while the average hourly rates for lawyers tend to be above $150.00. Although a number of Canadians will be able to afford to spend $10,000 on legal expenses, they may be hesitant to commit to full representation due to uncertainty as to how long their legal matter will last, and if unexpected issues or delays end up ballooning the cost compared to what they had originally expected.

In an unbundled legal services agreement, a litigant can choose, with the expertise of the lawyer or paralegal, which individual services they want. This increases the number of clients who are able to afford legal services because they do not have to pay for the entirety of services required in litigation[10], and they can afford representation at critical points of a legal proceeding rather than trying to navigate difficult court hurdles alone.[11] Consequently, unbundled legal services agreements can help avoid potential “all-or-nothing” situations. That is, situations where a litigant doesn’t qualify for legal aid, but cannot afford legal representation, so they need to represent themselves throughout the entire matter. Instead, the litigant can seek advice and reap the benefits of an unbundled legal services agreement by paying for the services that are the most complex or important for the outcome of their case, while cutting costs by performing and organizing the work that is more straightforward with lower stakes on their own.

This doesn’t merely provide access to the courts, but it provides increased access to sound and accurate legal advice and services which can be critical for the just outcome of a case. Litigants who act on their own are disadvantaged because they often lack the knowledge, experience and skills related to judicial processes, and the increasing number of self-represented litigants in the courts slows down the litigation process, which can lead to higher costs for the judicial system, further clogging up courts.[12] As such, a potential litigant may save time, money and stress if they pay for a lawyer to only examine and fill in complex forms rather than doing it themselves, as this may reduce the likelihood that a lack of experience and knowledge will have an impact on the more important and complex parts of the legal proceeding. Therefore, using an unbundled legal services agreement for the higher stakes hurdles in a court proceeding has the potential to afford litigants better access to a fair process while avoiding the full costs of a legal proceeding.

Although unbundled legal services allow litigants to receive services in a cost-effective way, thus increasing their ability to access justice, this is somewhat dependent on the supply of lawyers who are willing to provide unbundled legal service agreements. From a practical and financial standpoint, a lawyer may not want to invest his or her time conducting client intake, conflict checks and so on if they are only getting paid a fraction of what they would be getting paid if they were fully retained. Some have noted that this is a regulatory problem, and if the legal profession wants to use unbundled legal services to provide increased access to justice to litigants, regulatory change should be implemented to provide them with incentives to offer these agreements.[13]

Because providing unbundled legal services comes with novel responsibilities and concerns for lawyers, lawyers may avoid engaging in them due to a fear of increased risk of professional liability.[14] For example, if a client isn’t told about the detailed implications and limits of a limited retainer, the client may assume something is being handled when in reality it is not. This could be perceived as an extra step, as the lawyer now must not only explain the individual services he or she is offering, but also explain that in doing those things, other specific aspects of the legal matter will not be handled, which can have certain implications. Without this acute awareness and detailed explanation, this could possibly open up the lawyer to professional liability. A decision in Meehan v. Good[15], where the Ontario Court of Appeal overturned a motion judge’s decision that had dismissed a negligence claim against a lawyer and ruled that the lawyer had failed to give adequate advice to a client about limitation periods, was said to reflect a common reason why lawyers seem reluctant to offer unbundled legal services.[16]

Law societies seem to have taken note of this by creating rules and guidelines that seem to preserve the benefits of unbundled legal services while mitigating lawyer liability, and thus mitigating deterrence to providing unbundled legal services out of fear of professional repercussions. The Law Society of BC suggests that lawyers take certain precautions to mitigate the risks that come with unbundled legal services, such as using the initial client meeting to carefully assess the appropriateness of a limited scope retainer, avoiding making assumptions, using checklists to help identify and record who is responsible for what (the client or the lawyer?), and remembering that risk management practices employed in a traditional retainer equally apply to a limited one.[17] Others have argued that the pros outweigh the cons, highlighting that unbundling is a safe practice that provides access to justice which has the potential to result in faster and less stressful outcomes, with no indication of an increased rate of negligence claim or complaint to the law society for lawyers.[18]

In 2011, the Law Society of Ontario (then the Law Society of Upper Canada) approved amendments to the Rules of Professional Conduct and the Paralegal Rules of conduct, which function to guide the professional and ethical standards of lawyers and paralegals.[19] The Law Society, in anticipation of  an increase in the number of legal service professionals who offer unbundled legal services, changed the rules to guide lawyers and paralegals who provide “unbundled” legal services.[20] The changes include a rule (in most cases) where the client will receive a document confirming the limited nature of the retainer and clearly outlining the scope of the services provided.[21] This can benefit both the clients and the lawyer, as it can inform the clients of the precise nature of the legal help that they are receiving, and to what extent, and it can protect the lawyer from liability.

Although unbundled agreements may not be fully used to their potential, or regulated for maximum effectiveness, it seems as though law societies and the legal profession are increasing dialogue and taking action to integrate them into the profession and therefore provide those who cannot afford full representation, but also do not qualify for legal aid, access to legal services.
[1] Anita Balakrishnan, “LSO has responsibility to legal aid: Schabas”, Law Times News (18 June 2018), online: < https://www.lawtimesnews.com/>.

[2] Marg. Bruineman, The right price: Canadian Lawyer’s 2018 Legal Fees Survey shows some bright spots for law firms despite a highly competitive market (Toronto, Ontario: Canadian Lawyer Magazine, April 2018) at 21, online: Canadian Lawyer Magazine <www.canadianlawyermag.com>.

[3] Ibid.

[4] Ibid at 22.

[5] Statistics Canada, Household Income in Canada: Key results from the 2016 Census (Ottawa, Ontario: Statistics Canada, 2016), online: Statistics Canada <www.statcan.gc.ca>.

[6] https://www.statista.com/statistics/478954/average-family-size-in-canada-by-province/

[7] See “Duty counsel and summary legal advice services eligibility” at http://legalaid.on.ca/en/getting/eligibility.asp.

[8] See “Financial Eligibility Guidelines” at http://www.legalaid.ab.ca/help/eligibility/Pages/default.aspx.

[9] Statistics Canada, The Daily: Survey of Household Spending, 2016 (Ottawa, Ontario: Statistics Canada, 13 December 2017), online: Statistics Canada <www.statcan.gc.ca>.

[10] Carolynne Burkholder-James, “Limited-scope retainers – What’s in it for you?” CBA National, online: < https://www.cba.org/Who-We-Are/National-Office/Staff-Directory/National-Magazine>.

[11] Joni J. Berner, “Transforming a Family Law Practice to a Peacemaking Practice”, The Legal Intelligencer (powered by Law.com) (09 July 2018), online: <https://www.law.com/thelegalintelligencer/>.

[12] Jennifer A. Leitch, Having A Say: Democracy, Access to Justice and Self-Represented Litigants (PhD, Dissertation, Osgoode Hall Law School at York University, 2016) [Osgoode Digital Commons] at 137.

[13] The Honourable Justice Thomas A. Cromwell & Siena Anstis, “The Legal Services GAP: Access to Justice as a Regulatory Issue” (2016) 42 Queen’s LJ at 20 (WL Can).

[14] Law Society of British Columbia, “Managing the risks of a limited scope retainer (October 2017), online: <https://.lawsociety.bc.ca/>.

[15] Meehan v Good, 2017 ONCA 103, 2017 CarswellOnt 1351, [2017] 275 ACWS (3d) 431 (WL Can).

[16] Marg. Bruineman, “Chill effect on unbundling unnecessary”, Law Times News (26 June 2017), online: <https://www.lawtimesnews.com/>.

[17] Supra note 14.

[18] Supra note 16.

[19] Supra note 1.

[20] Ibid.

[21] Ibid.