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Unbundling unawares: are you doing it?

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Many solicitors are providing unbundled services without realising - and there could be regulatory implications, says co-author of the Unbundling Family Legal Services Toolkit Mena Ruparel

In my role as a consultant solicitor I work for a number of firms and so can often see trends developing ‘on the ground’. Since the demise of legal aid in family law I have noticed that clients need a different way to purchase legal services. They don’t know what the alternative service is called but they know they can’t afford (or don’t want to pay for) the ‘Rolls Royce’ service. What I have found interesting is that even those clients who can afford a full retainer service will occasionally opt for an ad hoc service because they prefer to be in control of the direction of their case. Although I specialise in family law work, this approach to purchasing legal services can be seen in different sectors too.

In order to keep clients happy and to retain work, solicitors are flexible and agree to do bits and pieces of work as and when the client surfaces. This isn’t intended to be the Rolls Royce service of the full retainer. However, in my experience, many firms don’t realise that they might be committing themselves to the Rolls Royce service but only getting the fees for a Lada! If firms aren’t careful they can create a full retainer with the client without intending to and this can cause regulatory problems.

The ‘limited retainer’

From my perspective, there seems to be an almost universal failure by solicitors to recognise that this new service requires an entirely different species of retainer. The ‘limited retainer’ needs to be carefully crafted for both the firm and the client to understand the precise limitations placed on it. This means that both parties understand what they should and should not be doing. More importantly, this ensures that the firm’s insurance policy is protected.

Unbundled services

Many firms are undertaking what is now called ‘unbundled’ work without realising that they are doing it. If you or anyone at your firm is offering any of the following services, your firm undertaking unbundled work.

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  1. Taking instructions for advocacy only services

  2. Only getting involved in the preparation of documents, for example, the consent order

  3. Preparing limited documents in the case without getting involved in correspondence with the court or other side

  4. Only giving advice without going on the court record

Regulatory issues

If these services are being offered without a proper system for the provision of limited retainer services, there could be compliance issues that haven’t been considered. Unbundled services are probably a higher risk category than full retainer services; typically, the solicitor only sees a snapshot of the entire case and so the information they get will be limited.

Risk management

These services should only be offered to clients who are capable of understanding the nature of the limited retainer and who able to undertake the work that the solicitor won’t be doing.

Ideally, firms should implement these services only after proper consideration and management of the potential risks involved. Staff should be properly trained to deliver these services efficiently and with an eye on the limitations imposed by each retainer. Only when the risks are recognised and managed will these services be profitable for the firm and affordable to the client.

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