Family lawyers offering ‘pay as you go’ legal services are warned of the risks they carry and how to avoid them in a practice note published today by the Law Society.
The note has been published to assist solicitors seeking to offer a more affordable service by allowing the client to deal with some aspects of their case themselves.
It deals particularly with family law cases, following the removal of legal aid for most private law family matters on 1 April and is aimed primarily at those offering face-to-face client work.
The note uses the term ‘unbundling’ to describe the provision of isolated or ‘discrete events of legal assistance’ in relation to a case under a ‘partial retainer’, rather than a traditional full retainer where a solicitor deals with all matters in the case.
It says that the essence of unbundling in its ‘purest form’ is that the case remains client-led so the solicitor does not accept service of documents, does not send out correspondence in the firm's name or otherwise communicate with third parties, does not incur disbursements and does not go on the court record.
In the family law context, unbundled services can be offered for elements such as initial advice on law and procedure, drafting the divorce petition, Form E financial statements, consent orders and advocacy.
The note adds: ‘Assisting clients in relation to contested proceedings may be possible on an unbundled basis, but the greater the solicitor's involvement, the greater the risk that a full retainer could be implied.’
The Society warns that ‘unbundling carries some specific risks’, particularly in relation to:
- Allegations of professional negligence arising from insufficient knowledge of the client's situation;
- Allegations of professional misconduct in relation to client care and duties to the court and third parties;
- Unwittingly creating a full retainer;
- Compliance with professional indemnity insurance terms and dealing with complaints.
To avoid some of the risks, it suggests that solicitors clearly express what is covered by the retainer.
It reminds solicitors of their overriding duty to act in the client's best interests, warning: ‘If you are concerned that it is not appropriate to limit the retainer in the circumstances or that your client does not understand the consequences of the limitations, then you should not offer an unbundled service.’
In addition, solicitors should notify their insurers of their intention to provide unbundled services.
Law Society president Lucy Scott-Moncrieff (pictured) said: ‘Solicitors are restructuring the way they offer legal advice so that clients can instruct them under a limited or partial retainer and therefore pay less.
‘Unbundling will greatly assist clients who are unable to afford to instruct a solicitor on the basis of a traditional retainer, but need advice on one or a number of crucial aspects of their case,’ she said.
The note contains specimen client care letters and a specimen letter to the judge confirming a solicitor’s status as an ‘unbundled advocate’.
Read the practice note.