Family lawyers offering unbundled legal services should be wary of charging clients on an hourly basis, the Law Society has warned.
In a practice note on unbundling in family work, the society said “this could increase the risk of the retainer being more broadly interpreted if you are undertaking a piece of work that goes beyond an immediate single task”.
Legal Futures has reported on a series of unbundled services in family law – where solicitors help clients on discrete parts of their case – as the legal aid cuts came into force, such as Yorkshire firm Oxley & Coward’s Pay as You Go service. But the practice note warned solicitors that if they want to limit the scope of their retainer, case law shows that “you must ensure there can be no inference that a full retainer was created in the first place”.
It also said that solicitors providing unbundled services should not go on the court record as acting solicitor, even if they are providing advocacy. “In these circumstances, the court should not be able to impose any additional duties that would arise from the conduct of litigation as your client retains conduct of their case.” It said the judiciary supported this approach.
Clearly defining the limits of the work the solicitor is agreeing to do should include a list of the things a solicitor might traditionally be expected to do but are not included in the unbundled service agreement. Then “you should therefore exercise strict self discipline in keeping within terms of the agreement”.
The practice note emphasised: “You have an overriding duty to act in the client’s best interests. 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.” It also cautioned against the risk of advising the client on the basis of inadequate information.
Law Society president Lucy Scott-Moncrieff 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.
“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 additional case-related costs and does not go on the court record.”