These days, most lawyers are aware that our justice system suffers from an accessibility crisis. We’ve heard the stories of people hiring a lawyer only to run out of money before the case even gets off the ground. Some of these stories may even bring to mind our own former clients. We know we’re expensive, the courts are unacceptably backlogged, and laws and rules are often unnecessarily complex. This leaves many folks between a rock and a hard place; unable to afford a lawyer but finding it near-impossible to navigate the judicial system without one.
Earlier this year, the CBA Unbundled Legal Services Section invited two women, Jennifer Muller and Debbie Marquis, to speak about their experiences representing themselves in family court. Both women have long-standing cases that still have unresolved issues today, and both had retained a lawyer to handle part of their legal matter at different times throughout their cases. Instead of the typical all-or-nothing approach to legal services, Debbie and Jennifer specifically sought out lawyers who could help them with some, but not all, of their cases as a way to stretch their legal dollars further and maintain control of their case. Their stories bring to light how far the unbundled legal services movement has come in the past decade, and gaps where we can better meet the needs of self-represented litigants (“SRLs”).
Jennifer’s Story
Jennifer’s case began in 2009 when she was served with notice of a court proceeding. She initially hired a full-retainer lawyer, but, like many other people, she wasn’t able to continue after five months due to mounting legal fees. She represented herself going forward, including for her upcoming 9-day Supreme Court trial. “The hardest part of it all was trying to muddle through how to prepare for trial,” she said, “I realized I needed to seek somebody’s help to figure out how to prepare myself.”
“There were certainly lots of online resources, and I was able to get through a number of interim hearings, although it wasn’t an easy task. The other party had top-notch legal counsel, and I was on my own.”
As the trial loomed closer, Jennifer spent months cold-calling lawyers in search of one who would agree to give limited advice while she self-represented. “I was turned down over and over again.” At one point, Jennifer begged one woman on the phone to give her advice a couple times per month at the lawyer's hourly rate of $400. The lawyer declined, saying that kind of arrangement wasn’t possible, and she needed to pay a retainer up-front. Finally, a friend gave her contact information for a lawyer who was willing to give her the limited time she needed. “He was afraid I would be unhappy with his services and may potentially sue him,” Jennifer said of her unbundled lawyer, “but I was overwhelmingly grateful to even be able to speak with him — just to get in the door.”
Jennifer met with her lawyer every second week for two hours. He gave Jennifer a framework for what each day of trial would look like. “Without it, I wouldn’t have been able to proceed with my matter,” she asserted. “Unbundled services are crucial for people to access the justice system, and justice itself.”
Unbundled services are especially essential for family law matters. “When people are faced with legal counsel on the other side, and particularly a family law matter where you’re heavily emotionally invested, the option of just having nothing is very detrimental to every aspect of one’s being.”
In February 2019, Jennifer’s case began to heat up again, and self-representing without any legal help was proving to be too stressful. “The thought of having to continue representing myself started to wear on me emotionally.” She again began looking into representation options but didn’t think she’d be able to qualify for a large enough loan to obtain full-service counsel. This time, Jennifer knew she was looking for a partner; she wasn’t interested in giving complete control of her case to someone else. She came prepared with a list of questions for potential lawyers, including, “Will I be able to participate in different parts of the case?”, “If I am able to handle parts of the case myself, would you be open to that?” and “What cost-saving options can I use so I can keep you as my lawyer?”
Jennifer ended up retaining two lawyers to handle different aspects of her case. Over the summer, she worked on her case herself while her lawyer was on vacation, including processing financial documents and creating spreadsheets with the help of accounting-savvy friends. “My lawyer was happy to have this when he returned, and I know it saved me a very large sum of money.”
When Jennifer first hired a lawyer, she had never heard of “unbundled” legal services. Looking back, she says, “A lot of services didn’t exist back then, like the unbundling roster.” If she had to start all over again today, she wouldn’t jump the gun to find a lawyer, which was mostly driven by a desire for immediate relief. “The days and the weeks that you spend at the very front end up shaping what’s going to happen for many months afterwards.”
Jennifer was also careful to present unbundling as a realistic, not a rosy, solution. “Unbundling isn’t free — you can sink tens of thousands of dollars fairly quickly with unbundled services. It’s so important, at the very beginning of unbundled relationships, to have frank dialogue about expectations, and what can and can’t be achieved.”
She also accepted that some matters may be harder to unbundle than others. “The more complex the matter, the more difficult it is to use an unbundled model.”
Although Jennifer is now able to hire a lawyer on a full retainer, she hasn’t lost the benefit of partnership that unbundling often brings. “I feel like I can weigh in whenever I need to” she said, retelling her experience in one hearing where the outcome was a “joint effort” between her and her lawyer. Jennifer is an advocate for access to justice, including the use of unbundled legal services. She is a member of the Access to Justice BC Leadership Group and Steering Committee chaired by Chief Justice Robert Bauman, which is focused on making improvements to the family justice system in BC. You can find her on Twitter @SRLjmuller.
Debbie’s Story
After Debbie left an abusive relationship in 2001, she didn’t initially seek child support due to fear of how her ex would react. It wasn’t until Debbie read the new Family Law Act in 2015 when she realized that child support was the right of every child, and that a parent cannot agree to “give up” receiving child support just because they don’t want to deal with the other parent. Debbie decided to seek child support for her children.
At first, Debbie decided to go to court on her own, but found the court experience “very intimidating” and confusing. “I didn't fully understand all the formalities of court procedures, and I felt I would not be able to articulate my experience and the needs of my children fully because I did not have a lawyer. I didn’t want it to look like I was disrespecting the system... I just didn’t know the right words to use in a court arena. It was scary.” Debbie realized she was in over her head and started looking for a lawyer to help her children receive the support they were entitled to. “I also needed relief. I needed assurance that [the lawyer] could take the weight off my shoulders and get a fair result.”
Debbie worked with two different lawyers over the past five years, one on a limited basis for three years. “I was using the unbundled process, even though I didn’t realize it. I filed paperwork, made books of orders and affidavits, had documents served, and represented myself in court.”
The first lawyer helped her draft a Final Order, but it contained errors, which meant the Family Maintenance Enforcement Program (“FMEP”) would not enforce section 7 special expenses. Debbie hired a second lawyer when her spouse contested the Final Order. This lawyer, said Debbie, “wanted to do things his way. He thought lawyers should do the lawyering.” The order was changed by consent after further court proceedings, but FMEP was still unwilling to enforce it.
Debbie expressed frustration that there seemed to be a disconnect between lawyers, judges, and FMEP, which results in depriving children of the support they need. “Why do lawyers not know the correct wording? Why do judges sign orders that can’t be enforced with their own enforcement agency?” FMEP told Debbie to go to court to revise the order again, “as if that were the easiest thing in the world,” which, of course, it was not for Debbie. Debbie noticed many delays and inefficiencies in the court system. “Each time I went to court, there was a different [judge] there that I’d never spoken to before who was about to make a decision about my case, which they knew nothing about.”
Ultimately, Debbie views the family law system as having failed her, resulting in a continuation of the abuse she experienced during her relationship. “I was always proud of the fact that teachers and friends praised me for raising my children so that they did not appear to come from a broken home. However, after 15 years of court and family law, my children are now products of a broken system.”
In hindsight, Debbie would have asked questions to her lawyer about their skills and knowledge and taken more time to find the right fit. “Most single parents cannot afford lawyers’ hourly rate... I’m not sure if the lawyer I hired was really on board with the concept of unbundling. He just told me that if I did some of the paperwork, I would save money.” Debbie didn’t have a written retainer agreement with her lawyer. She warmed to the idea of working together with a lawyer as partners but wasn’t sure what this would look like.
Jennifer, who had a more positive experience with unbundling, has some suggestions for how unbundling could be improved. “You need to have an up-front agreement to know what you’re spending your money on. There’s lots of room for improvement for legal business models, such as flat fees or fee-for-service.”
As unique as Jennifer’s and Debbie’s stories are, a few common themes emerge:
- Both experienced the emotional toll of going to court and the desperate need for relief
As Debbie said, “After years of documentation and court proceedings, denials, refiling, and the retelling of traumatic events over and over again, I felt defeated and demoralized.” Each sought professional advice in part to know that they weren’t alone, and to have support and guidance.
Having an unbundled lawyer in their corner can provide some much-needed relief to SRLs, who no longer have to face their case without any legal assistance. In addition, mental health professionals such as divorce coaches and child specialists can supplement the unmet emotional needs of many SRLs. The accessibility of these services for SRLs is even more crucial than for other litigants, as SRLs shoulder ultimate responsibility for their matter.
- Both saved legal fees through unbundling
Unbundled services are typically cost saving, as the work is shared between lawyer and client. Both Debbie and Jennifer were able to save fees by appearing on their own and doing most of the legwork and preparation themselves, only using a lawyer when their capacity and knowledge ran out.
However, as Jennifer mentioned, unbundling is not free and may still result in significant legal fees. It’s crucial for lawyers and clients to discuss in advance how legal services can fit within the client’s budget.
- Neither had lawyers who fully “bought into” unbundling as a different approach to the practice of law
Jennifer didn’t specifically seek “unbundled” services — she was just looking for anyone who would be willing to offer occasional advice in a legal landscape that had limited resources for unbundled services at the time. Debbie’s unbundling relationship consisted of her doing “some of the paperwork” to save money, as opposed to being a co-partner in her case. Unbundled services require a different skill set than full-retainer services. To work well, they must involve a greater level of communication, collaboration, and knowledge-sharing between lawyers and clients. Partnership and empowerment are key principles for a successful unbundled relationship.
- Neither had retainer agreements with their unbundled lawyers
Setting clear expectations of the tasks the lawyer will take over, and those that will remain the responsibility of the client is crucial in unbundling, where a lack of these can lead to the dreaded “scope creep.” A written retainer agreement is absolutely necessary to ensure both client and lawyer know what their roles and responsibilities are. Having a retainer agreement in place helps prevent skyrocketing fees which the client can’t pay (or objects to), missed deadlines, exposure to liability, and poor case management.
Unbundling has come a long way in the last decade, and especially in the last several years. In BC, we now have a toolkit for lawyers containing resources, including best practices for unbundling, a Family Law Unbundled Roster with more than 160 members, and a public-facing website to increase awareness of unbundling as a legal service option. The need for unbundled services remains as large as the number of SRLs not receiving any legal help. That need is likely increasing as the COVID-19 pandemic leaves many SRLs in uncharted legal territory and with less available income. Voices from those such as Jennifer and Debbie reiterate the need for an “unbundled” model of legal services built on fundamentally different attitudes and assumptions than the traditional model.