Unbundling or unravelling?

The new buzz word of the moment in some legal circles is "unbundling" but could it all lead to matters "unravelling"?

The concept essentially is to offer clients the option of doing parts of the work themselves and paying a Solicitor either for discreet pieces of work or defined parts of a matter.

I can certainly see the benefit to the client in terms of limiting costs but I do think both sides need to be careful that matters don't end up more complicated with the case suffering as a result.

This idea is being discussed over a number of different areas of law but I shall focus on family law, as it is the one I am more familiar with.

Take Divorce as an example. What I mean by that is what lawyers refer to as the "main suit", the paper-process that takes a person from "married" to "divorced". Often misunderstood by clients as encompassing all issues, finances and children as well.

That process is fairly straightforward - yes there are some points that need to be discussed/negotiated but if a Divorce is to proceed undefended i.e. no answer filed by the Respondent (which is not the same as someone disputing what is said about their behaviour but nevertheless agreeing that the marriage has come to an end) then the reality is that the process is defined and why should we not, as lawyers, be able to offer a fixed fee or "unbundled" service to clients?

The level of fixed fee will depend on how much work a client wants to undertake themselves. I know, if i am to do all of the drafting for a client, what is involved and how long it will take me. If a client is being guided by me but undertaking the drafting themselves then there is less certainty about how much input they will need from me in terms of the paperwork.

There has been much discussion about how we can tell whether a client is capable of undertaking the necessary work, how much they understand and whether them undertaking work themselves may put other aspects of the case in jeopardy - that may well be relevant if the client is left to their own devices, entirely unguided or perhaps in other areas.

My view is that each client has a particular relationship with their lawyer and lawyers should be sufficiently adept at client care and client contact to establish a good relationship with each of their clients. It is a matter for discussion between the Solicitor and client as to how work is divided and whether indeed the client wants to do any of the work themselves.

I have had no difficulty with clients opting for our "Guided Divorce". I am clear with them at the outset about our respective responsibilities in terms of paperwork etc. and understand from their feedback that the option of controlling costs by undertaking the preparation of papers themselves has been helpful. Clients feel that they are able to work this way because they know that they have my guidance throughout.

In terms of other matters, I can see that it may be difficult to "unbundle" financial negotiations for example or negotiations concerning child arrangements.

That is twofold, to ask a Solicitor to work on a discreet piece of work, perhaps the preparation of a statement for example, can in fact be counterproductive - the Solicitor will not have been privy to the detail of negotiations and will be unable to advise in the round to ensure that all areas are covered and that the client understands their position and any risks that they face.

This causes a difficulty for lawyers, who are inherently risk averse, because we feel that we are left open to suggestions that we have not fully advised the client about the various possible outcomes or their risks, that there might be some claim raised against us etc. etc.

In addition, fixing a fee for negotiations is difficult because the length and depth of work is an unknown at the outset.

That said, I can see no reason why costs for defined stages of proceedings cannot be set in bands with detailed information given about what that "band" involves. That leaves the client clear about the level of costs that they will incur up to a certain point and allows the Solicitor to work on the matter throughout and not piecemeal, which satisfies us as regards our duty to fully advise etc. etc.

I think the reality is that decisions as to whether firms operate this way going forward will be business decisions and the level of fixed fees, "unbundling" or banded fees will need to be carefully assessed and clear letters to clients detailing the extent of the work being undertaken by the firm and by the client respectively.

The legal landscape is changing, fast, and I do think that more flexibility is required and will be demanded by clients - perhaps especially after the 1st April.

This is a brave new world of legal services but who will have the courage?