Tony Roe reviews the Law Society’s new title on unbundling in the family sector
Unbundling Family Legal Services Toolkit
Ursula Rice and Mena Ruparel
£69.95 (£55.96 for Family Section members)
Published 1 October 2016
Law Society Publishing
Unbundling’ and ‘a la carte’ are terms often thought to be relatively new in the context of legal services. But while the terminology might be new, Nick Jarrett-Kerr commented, as far back as 2013, that law firms have been unbundling services for sophisticated commercial clients for many decades.
In an article for the Solicitors’ Journal in June 2013, ‘Unbundling legal services is nothing new’, Jarrett-Kerr said: ‘For many years, cost conscious clients have been undertaking some of the administrative heavy-lifting in their legal matters. Indeed, solicitors have in all sorts of matters – from litigation to transactional work to probate administration – been telling their clients that “the more you can do as the client, the less we have to do as your lawyers and the less we will charge”’.
2013 also saw the Law Society release its unbundling family legal services practice note. It pointed out that, since 1 April 2013, legal aid was no longer available for most private family law matters where there is no history of domestic violence and abuse. It added that clients of modest means are unlikely to be able to afford to instruct a solicitor on the basis of a traditional retainer, but they may wish to instruct a solicitor under a partial retainer for a particular aspect or aspects of their case. It was felt that most of the content and advice provided was relevant to a wider range of civil law matters, hence a revised practice note, on unbundling civil legal services was released in April 2016.
In November 2016, the Society published a practice note on the court duty scheme for private law family clients. This states that it is essential that the client understands and agrees upon the nature and extent of the work to be provided through the duty scheme. What would be helpful is a publication which has a detailed and comprehensive approach to unbundling within one’s practice. We now have it.
The Unbundling Family Legal Services Toolkit is the first book from the Law Society on this theme. In its preface, it notes that, without unbundled services, separating legal work into discrete tasks shared between solicitor and client, many simply could not afford to instruct a family lawyer. The focus of the book is commercial, not philanthropic, aimed at supporting firms to develop a sensible, managed approach to such an offering in a changing market.
Increasingly, firms are introducing some level of unbundled services as a more affordable alternative to the traditional retainer. This practical toolkit aims to advise practitioners on best practice in relation to unbundling, while pointing out the potential risks and how to reduce them. Indeed, the book is introduced by a quote from Minkin v Landsberg  EWCA 1152 stressing the need for diligence when drafting client care letters on a limited retainer.
The authors say that there are at least three types of such limited retainers. The book sets out to identify and deal with three of these: fixed work / fixed fee, and two forms of ‘pay as you go’, one strict, the other flexible. Tables aim to set out the risk profile of each type and the level of administration involved.
The book is broken down into eight main sections. It kicks off with a chapter introducing unbundled services, before moving onto delivery and risk management, followed by ethics and regulation, then fees and payment. Further chapters deal with advocacy, implementation, training and marketing.
This publication is indispensable for any firm which may be contemplating, or already offering, unbundled work. So many firms are indeed dealing with this kind of service without even being conscious that this work is of an unbundled nature.
There are some very useful precedents and checklists within the book, including specimen client care letters. The work is structured to include annexes at the end of its chapters, which are not to be overlooked given the detail they contain. It would be helpful to see the ‘compliance checklist’ in the body of the first chapter as well as in its annex: informing the firm’s professional indemnity insurers and getting authorisation from its compliance officer for legal practice are very important and cannot be understated.
Not every firm will want to offer unbundled work. Those that do will want to ensure that they run a very tight ship. This concise toolkit will be key for them. Of course, they will also need strict financial discipline, getting money up front on fixed-fee cases and payments on account.