MCLE Self Study

By Sarah Castelhano Cassady

Castelhano Cassady

Over the past thirty years, access to legal services in California and across the United States has sharply declined.[1] While corporate entities continue to benefit from legal services, and have in fact increased their retention of legal services over time, the representation of individuals in legal disputes has declined, leaving California courts overwhelmed with historically high numbers of self-represented parties.[2] As the trend continues to develop and the general public loses access to legal services at a worrying rate, the State Bar of California has taken steps to understand and address the barriers preventing access to justice by indigent and middle class Californians. In fact, as a part of its Strategic Plan for 2017-2022, the State Bar has included several goals and objectives geared toward improving public access to legal services.

In pursuit of this goal, the State Bar commissioned a landscape analysis by Professor William D. Henderson concerning the current state of the legal services market, and examining new technologies and emerging business models used in the delivery of legal services ("Henderson Study"). The Henderson Study examined the growth of artificial intelligence and online legal services delivery models springing up to address current gaps in access to legal services. The intent was to set a framework so as to more fully understand how access to legal services in California may be improved.

According to the Henderson Study, legal services in California, and indeed in the United States, are lagging in productivity, especially in comparison with other professional industries. Other industries, such as health care and higher education, have exponentially expanded their market shares and access to services over time by making their products more widely available to consumers through technological advancements, including by providing piecemeal services via easy-to-use online platforms and applications.

In contrast, the legal industry remains more tied to a traditional model for delivery of legal services, not just in California, but across the country. It was only 15 years ago that the Judicial Council of California first adopted rules and forms to provide for limited scope representation.[3] And it was considerably more recently that attorneys and firms begun to court clients for other non-traditional services, such as services provided via an online platform. The progress has been slow growing. The slow change is perhaps due to traditional views of practice that are carried down in law firms from older mentors to younger attorneys, and perhaps based on past ambiguity in the Rules of Professional Conduct on how limited scope representations might proceed. While traditional modes of legal practice remains the status quo across the United States, as a cutting edge leader in technology, California may be among the first to make a transition utilizing new technology to improve the practice of law.

The Henderson Study found that access to legal services in California may be greatly improved by entering the "gig economy" and using new technologies and business models to connect clients with both full-service representation and limited scope legal services, or services that are "unbundled" or tailored to the client's particular discrete needs. Legal services provided a la carte, or unbundled, allows clients who are inexperienced or lacking the funds to pay for a full service legal representation to obtain legal assistance in the areas they most require representation or advice. It also allows attorneys greater access to prospective clients seeking unbundled services, and opportunity to practice law from virtually any location, giving attorneys greater control over their practice.

For example, a person searching for unbundled legal services online can be very specific in their criteria and may be seeking an attorney to perform only a discrete number of tasks, such as document preparation or legal research, or they may request representation at a specific stage of a matter, such as during the drafting and filing of a complaint. Presumably, the prospective client could attorney-shop via an online platform or application and "order" these services a la carte. And, by providing prospective clients easy access to legal services from the comfort of their homes, the likelihood clients will use limited scope legal services will undoubtedly rise. While some platforms for such services already exist, the concept of unbundled legal services is still gaining traction. In the past, limited scope legal services agreements were perceived as a questionable practice and, when entered into with a party appearing before a tribunal, posed a significant risk of resulting in a full service representation even though the attorney and client had preferred only a limited scope representation.

The State Bar has taken significant steps toward improving access to legal services, including limited scope services. One example of this is the adoption of new Rule 1.2 of the Rules of Professional Conduct. This rule, part of a package proposed by the State Bar's Rules Revision Commission and approved by the Supreme Court of California, effective November 2018, expressly recognizes the practice of limited scope representation and provides the specific factors required for entering into the representation. According to Rule 1.2, the attorney may provide limited scope or "unbundled" services if: (1) the limited scope representation of the client is reasonable under the circumstances; (2) it is not otherwise prohibited; and (3) the client gives informed consent.[4]

Under the first prong of the rule, the attorney is subject to a reasonableness standard, requiring the application of judgment to determine whether, all facts and circumstances considered, and regardless of the client's preference for limited scope legal services, such services are reasonable.

Under the second prong of the rule, the limited scope representation must accord with all other Rules of Professional Conduct and other laws. Chief amongst those are:

1. An attorney's duty to meet the minimum competency requirements for undertaking the representation, including by acting with the diligence, learning and skill, and mental, emotional and physical ability required of the representation [Rule 1.1];
2. Limitations on attorneys entering into business transactions with clients, except in accordance with a few narrow exceptions [Rule 1.8.1]; and
3. The impermissible restrictions on an attorney's right to practice law after the relationship has ended [Rule 5.6].

Attorneys also continue to be subject to all applicable laws governing limited scope representation, including the California Rules of Court rules governing limited scope agreements in civil court [Sections 3.35-3.37] and in family law matters [Section 5.425].

Finally, under the third prong of the rule, the client must give informed consent for the limited scope representation. The Rules of Professional Conduct define informed consent to be the client's agreement after the attorney has communicated and explained the relevant circumstances and material risks (including reasonably foreseeable adverse consequences) of the proposed course of action [Rule 1.0]. Attorneys would do well to tailor any consent agreements to the native language, experience, and education level of the client to prevent any ambiguity over the legal services to be provided.

With these three elements met, attorneys may take on limited scope representations. Although the rule change itself may seem minor in light of the previously existing Rule of Court, the change is one of many geared toward providing greater flexibility for clients and one which can have the effect of creating a foothold into the gig economy for attorneys.

California's legal profession may well be at a crossroads. Following the publication of the Henderson Study, the State Bar formed the Task Force on Access Through Innovation of Legal Services. The Task Force is studying possible mechanisms to capitalize on technological innovations in the legal field in a way that will increase access to legal services for individuals. The discussions about these potential mechanisms to increase access to technology have been quite lively to say the least. However it is this author's view that the time has come to increase access to legal services through technological means. The confluence of the adoption of Rule 1.2 with the emerging discussions about the use of technology to increase access provide an unparalleled opportunity to expand legal practice in California, including, most importantly expanding access for indigent and middle class individuals and to allow attorneys greater flexibility in shaping their practice.

Sarah Castelhano Cassady is an associate attorney at Young, Minney & Corr, a charter school law firm representing over half the charter schools in California. Her practice focuses on labor and employment issues and matters of Board of Director governance. Sarah also serves as the Chair of the Litigation Committee for the American Bar Association – Young Lawyers Division, in various other committees and associations, and has published articles and spoken at conferences on labor and employment and litigation matters, particularly with regard to the representation of public entities.