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Issue 27 | May 2014

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
LIMITED SCOPE RETAINERS

More and more lawyers are performing work on a limited scope retainer or ‘unbundled’ basis – namely performing only a portion of the work on a larger legal matter.

For example, an unbundled approach might see a lawyer reviewing a single document or providing only one piece of advice within a larger legal matter.

Unbundling your services for your clients, however, can be risky. The approach can force clients to make decisions on legal matters with which they are unfamiliar – while doing so from within an unfamiliar  system. In addition, unbundling usually limit a lawyer’s access to case information along with their general ability to guide the matter toward a successful conclusion on behalf of a client.

What does the law say?

Rule 3.1-2 [7.1] “Competency” of the Nova Scotia Barristers’ Society Code of Professional Conduct (the Code) states: “When a lawyer considers whether to provide legal services under a limited scope retainer the lawyer must carefully assess in each case whether, under the circumstances, it is possible to render those services in a competent manner. An agreement for such services does not exempt a lawyer from the duty to provide competent representation. The lawyer should consider the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The lawyer should ensure that the client is fully informed of the nature of the arrangement and clearly understands the scope and limitation of the services.”

In addition, lawyers providing unbundled legal services are held to the same obligations of competence, diligence, loyalty and confidentiality that are provided to full-service clients.

Room for disagreement
Failing to establish a proper limited scope retainer with clients may cause them to dispute your fees or to file malpractice suits or bring an ethics-related complaint against your firm.

Commons causes of disputes include unauthorized time spent on a client matter as well as any subsequent fees, along with clients being unsatisfied with how a court has settled the matter.

Managing these risks
Please note that offering unbundled legal services is inappropriate in certain situations.

Specifically, rule 3.2-9 (Clients with Diminished Capacity) of the Code states: “When a client’s ability to make decisions is impaired because of minority or mental disability, or for some other reason, the lawyer must, as far as reasonably possible, maintain a normal lawyer and client relationship.”

In addition, you should assess whether your client’s expectations are realistic and if they readily adjust their expectations in response to new information.

Should the answer to either of these questions be ‘no’, we suggest you consider the potential risks in accepting work on a limited retainer
basis.

Furthermore, if your client comes to you for further assistance after the first matter is settled, be sure to draft a new full or limited scope retainer as required.

A written retainer is required for unbundled services (see rule 3.2-1A of the Code). You should draft it in unambiguous language that clearly describes the scope of the work the client is hiring you to do, especially in those instances when the client declines one or more aspects of your service offering or undertaking to handle some aspects independently. Details of these arrangements should be reviewed both verbally and in writing with the client.

Summary
Well-documented and clear client communication is the best way to reduce risk when working on a limited retainer basis. Take the time, therefore to properly communicate fees and costs, expected outcomes and unexpected contingencies – and to  actively listen and ask your client questions. Follow these suggestions and you’ll manage both your client’s expectations and your own claim-related risk confidently and competently.