Limited Scope Retainers (or Unbundled Services)
What are They?
Unbundled services or a limited scope retainer is when a client retains a lawyer on a part-time basis or for only part of their case. Thus, the client maintains ultimate control and conduct of their file and uses the lawyer when necessary and as the client sees fit.
For example, the lawyer might be retained only to provide general legal information, to draft court documents, or to appear in court on a limited basis. Often the lawyer helps the client prepare their legal case, etc., but it is the client who sends and receives correspondence, files documents in court, etc. The client has control of and responsibility for their own file.
In some limited scope retainers, the client leaves a retainer deposit with the lawyer, and in other situations the client retains the lawyer hourly and pays immediately for each meeting or task performed by the lawyer. Given the lawyer’s limited involvement, opposing party or counsel may not even know the lawyer is involved – the lawyer works in the shadows.
Why have Them?
There are a growing number of Canadians who cannot afford to hire a lawyer, and who do not qualify for legal aid, but are facing litigation in family court. Across Canada there are more and more self-represented litigants in family court. Most of them have very limited knowledge of the necessary substantive or procedural law. Consequently, for many it’s ‘one step forward and two steps back’. This can be extremely frustrating and time consuming for both the litigant, and the court.
To address the issue of access to justice, the Law Society of BC launched a task force to investigate implementing limited scope retainers. In 2008 the task force made recommendations which resulted in changes to the lawyer’s Code of Professional Conduct. The changes were made to facilitate lawyers accepting limited scope retainers and providing unbundled services. There is now a roster online listing BC lawyers who accept limited scope retainers (the BC Family Unbundling Roster), and the Law Society encourages lawyers to provide unbundled services.
The family court process is complicated and strewn with pitfalls for the uninitiated despite the ‘plain language’ used in the Family Court Rules and the self-help guides online. As a result of the growing number of self-represented people in court who have little or no legal knowledge or training, our courts are becoming clogged. Cases are taking much longer to process, and judicial resources are becoming increasingly scarce. To compound the problem, judges cannot give legal advice without appearing biased and are faced with lay litigants who desperately need a little direction, but the judge can’t give it. There is duty counsel, but then it’s like consulting a different quarterback for each play of your game, and each quarterback plays the game a little differently. There’s a lack of continuity.
There are risks involved when retaining a lawyer part-time. If the lawyer is retained in the usual fashion, he or she has full conduct of the file and all correspondence, etc. will pass through the lawyer to the client or opposing party, and vice-a-versa. Consequently, the lawyer is aware of all that is transpiring in the case. Knowing the whole case allows the lawyer to strategize the most appropriate course of action to reach a timely resolution, and insures important issues are not missed.
However, hiring a lawyer on a limited scope retainer implies the lawyer will not have full control of the file and will be limited to the information you give the lawyer. The lawyer can only provide advice based upon the received information. If information is missing, then the advice will be compromised. The risk is you not telling the lawyer certain facts that you think are unimportant, but which to the legally trained mind are significant and would affect the legal advice. Although limited scope retainers are usually less expensive than retaining a lawyer full time, remember the adage: Pay peanuts, get a monkey. Monkeys usually don’t do well in court.
If you’re in family court and self-represented, then consulting with a family law lawyer periodically for guidance could help demystify the process and ensure you’re missing the common pitfalls while doing what’s needed and when. Generally, you only get one ‘kick at the can’ when you’re going to court. Make sure it’s a good kick. Get the help of an experienced family law lawyer.