Unbundling unbundled: is our approach to family legal services finally changing?
Cuts to legal aid are hitting family practitioners' client base like never before. As the Law Society pub lishes a practice note on unbundling, we try to demystify a term mired in misunderstanding. Face-to-face advice, transparent costing and clearly-defined services - unbundling is supposed to be the simple way, so why is it so confusing?
Unbundling is a misleading term. Like other buzz-words which have come before it, many attach their own definition. Countless then develop, and before long the word has lost all meaning.
In its recent practice note on unbundling in family law, the Law Society defines it as the provision of "discrete events of legal assistance" under a partial retainer. "A la carte" legal services are, in many cases, a fancy phrase for the simple breaking up of a case into manageable, andideally, cheaper pieces that can more easily be sold to clients unable to afford full rate. Or - because we are really mostly talking about fixed fees at this stage - because clients like the fact that it is more predictable than hourly billing.
Unbundling isn't a new phenomenon - we've been doing it for some time, on an ad-hoc basis; it was first mentioned in Solicitors Journal in 2009. But legal aid cuts mean more and more providers and consumers are looking to unbundling to provide a solution. Simple, transparent and cost effective - these are the pillars on which unbundling has been built. Clients know that if they are getting face-to-face time with their solicitor, they are paying for it. Time and brains, not letters, phone calls and hidden charges.
In its recent report, the Legal Ombudsman lambasted family lawyers for giving inaccurate cost information; 21 per cent of consumers were not given an estimate of fees when first consulting a lawyer. Unbundling seems like the obvious answer.
At Solicitors Journal's recent 'SJ Live' conference, head of family at TV Edwards David Emmerson told delegates about his firm's use of unbundling. Clients, he said, can come in and spend an hour with him at a cost of £100 or an hour with a trainee, paying £25. They pay at the reception once their appointment is over - a 'pay as you go' service. But, said Emmerson, his firm isn't interested in unbundling in "a significant way". Unbundling's lack of definition is certainly causing some confusion.
To work as a commercially-viable concept, unbundling relies on the case remaining client-led. The solicitor provides the client with discrete advice regarding specific steps in their case. That could mean advice on drafting a divorce petition, financial statements or consent orders. Providing clients with forms and self-help packs is the bread and butter of unbundling, as is the checking or drafting documents for clients. Unbundling relies on a face-to-face initial meeting, so solicitors can properly assess the client's needs and case.
Fixed fee and unbundling are currently interchangeable, but not all unbundling necessarily means charging a fixed fee. Like TV Edwards, charging by short units of time for quick pieces of advice may be better in certain circumstances.
However, unbundling isn't necessarily right for every client and every case. Some may be simply too complex to unbundle, needing a full retainer instead. Ensuring clients understand what is and isn't included is essential to delivering a comprehensive (within the limits) service. Accusations of professional negligence may be levelled if you enter into an unbundled case with inadequate knowledge of the client's situation, perhaps one reason why some providers still remain married to fixed fees.
Representation at court may be provided on an unbundled basis, but as an alternative to traditional advocacy, Chancery Lane says family law departments could offer clients a "professional McKenzie friend service", to provide advice and support to litigants in person during a hearing. The practice note suggests that the service could be offered by a suitably trained paralegal for a modest fee.
But unbundling isn't just reliant on the amount of face-to-face time you can spend with clients in the very early stages of a case. If unbundling is going to keep family legal services afloat, then practitioners need to advertise their unbundled services effectively. Not everyone has the Co-op's marketing budget, but getting clients through the door still relies on word of mouth and good service, unbundled or not.
Whether you're giving advice, providing documents or advocacy, unbundling could help maintain your client base in a way that works for both solicitors and clients. The future is unbundled, and it's face-to-face. But maybe we need a new word for it first.
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‘We have not advertised the approach widely’ "There is a tension between a client needing to have certainty and control of the legal cost that they are incurring, and a lawyer’s continuing obligation to provide that client with advice in a process fraught with unpredictability arising from the behaviour of the participants and legal risk. This tension was highlighted in the Legal Ombudsman’s recent report on common causes of client complaints, and these concerns around transparency of costs need to be considered alongside the Law Society’s advice about the risks of providing services for specific tasks or events, rather than support throughout the entire process – now commonly known as unbundling. A solicitor may be able to assess their own client’s capacity to accept advice to compromise or moderate expectations. Sadly, this assessment is not a precise science, and is impacted by the behaviour of the client’s former partner. So fixing fees or even providing cost estimates is far from easy. Over the course of my 30 years in the family law profession, the way in which we practice has altered incredibly. Increasingly, cost is discussed, and instructions adapted in line with the client’s priorities. The first meeting will focus on telling the client where they stand, with advice offered in the context of helping the client with minimum expense and minimum emotional distress. It is now a useful means by which discussions along the lines of ‘how much can you afford to spend on legal fees’ are conducted. Once you start having that conversation, it is an obvious extension to say to the client, for example, “you complete your Form E and I will do the first appointment documents,” so that the available funds are use effectively. The best value for money is the initial meeting with a lawyer. An explanation of their legal position can enable many clients to reach agreement around the kitchen table. The second most popular method with my clients is mediation. It is no coincidence that these are cheaper options. The advice and implementation of agreements to support these processes can also be fixed fee services. Resolution family lawyers across the country are offering services in this way. They may not be calling them unbundling, and – like me – they may not have had advertised the approach widely. But any first meeting should involve a conversation around how the client’s needs can best be served without uncertain costs." Liz Edwards is head of family law at Amphlett Lissimore and chair of family law practitioner group Resolution |
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"The Co-operative Legal Services has been offering fixed and transparently priced legal services for some time now. Before we set up these services, in essence, we undertook much of the work that was required to make a success of unbundling. This included being completely sure of our cost base, designing a service which was underpinned by significant investment in IT infrastructure, ensuring great quality for the client and certainty that our service delivery model met the highest regulatory standards.The current focus on unbundling is both timely and helpful for the consumer. The impact of LASPO has led to 200,000 people a year falling out of family legal aid scope. Demographically, these people come from the lower two income quintiles in society and there has to be a real question as to whether they can afford any legal services at all. To increase access, we are developing an additional range of free services to the public, expanding our free initial telephone advice and web-based information and advice. This will include helpful and professional YouTube videos as well as other social media support. There will, of course, be many people who need more. This group includes those who are no longer eligible for family legal aid, but it is much broader than that. For decades, there has been huge unmet legal need in this country. We are providing part of the solution to that problem by extending our current range of 87 modular, fixed and transparently-priced family law services to include an additional range of unbundled legal services to meet consumers’ needs. We are not ready to launch these yet – it took us ten months before we felt ready to launch the family law service last September, so we don’t rush into things. We will do this soon as we have significant experience from our current range, and believe it in the public’s best interests for these services to be available." Christina Blacklaws is director of policy and family law at the Co-operative Legal Services |
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"While the Law Society practice note on unbundling family law services is a comprehensive and informative document, I believe some caution is needed. The objective of unbundling family legal services is to provide clients with legal advice and assistance at a pre-determined price on a set issue which is also cost effective to the service provider, ie, the solicitor. Recognition has to be given to the fact that a number of clients, particularly with the significant limitation on availability of legal aid, are not able to afford to pay a solicitor on an ongoing basis on a retainer, as clients have traditionally done. By offering fixed fees for initital appointments and uncontested divorces (not including advice on financial matters) this objective can to some extent be achieved. Offering of other fixed fees clearly does raise issues as to whether you do have sufficient information to advise a client properly, professionally and clearly. A client needs to be aware of this. The practice note offers guidance in this respect. However, as a solicitor you have to try and strike a balance in achieving this objective against a background of covering yourself professionally and it being cost effective for you to undertake the work in this manner." Gilva Tisshaw is director of Tisshaws Solicitors and president of the Sussex Law Society |