Clients are increasingly seeking a relationship with family solicitors that involves co-working. Legal aid is rarely available and solicitors are often unaffordable. Unbundling effectively involves a solicitor acting as a “sub-contractor” to whom specific tasks are outsourced by the client.
Such tasks could involve writing letters, drafting documents, helping clients to negotiate or nurturing advocacy skills. It could involve research or providing a second opinion and, of course, it could involve representation at court with the client acting in person until the hearing. Typically, the client pays the solicitor at hourly rates or fixed or capped fees for different aspects of their advice. The arrangement can be less than ideal and there are many pitfalls. However, only the most short-sighted solicitors or those with the most privileged clients can afford to ignore the increasing demand for clients and solicitors to work in an interdependent fashion.
Whether to accept work on this basis is, perhaps, the most difficult decision of all. It is not difficult to imagine an unbundled arrangement with a client of reasonable sophistication. For example, we cannot pretend that completing the average court form requires a significant degree of legal expertise and highly numerate clients are well equipped to complete Form E in most cases. However, solicitors should not assume that clients understand the litigation process, the importance of tactics or the substantive law in issue. These are much more important than form filling. Also, clients who negotiate an unbundled retainer can, indeed, be very sophisticated but also costs conscious. There may be a temptation to cut corners. It is essential that the solicitor invests an adequate amount of work on the case at the outset and the decision whether to take on cases of this nature will require skilful and rapid screening. As unbundling involves a more interdependent style of working, solicitors need to form a view on whether or not they feel able to work with the client as part of a team. The client must form the same view.
Fundamental to this relationship is the joint decision of who will be responsible for what. Clients should be given general information outlining the litigation process, including costs rules and key legal points. It is important that the terms of business letter is carefully amended by reference to the different stages of litigation and a breakdown of tasks for each stage. Failure to do this will mean that a solicitor will mismanage a client’s expectations. At worst it could lead to a claim in negligence. At the outset of instructions and throughout a case, clients should be advised about the importance of court deadlines and limitation periods, both in connection with work for which they are responsible and work for which the solicitor remains responsible.