{"id":359,"date":"2006-12-05T15:41:51","date_gmt":"2006-12-05T19:41:51","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2006\/12\/05\/all-bundled-up-in-new-york\/"},"modified":"2006-12-05T15:47:07","modified_gmt":"2006-12-05T19:47:07","slug":"all-bundled-up-in-new-york","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2006\/12\/05\/all-bundled-up-in-new-york\/","title":{"rendered":"all bundled up in New York"},"content":{"rendered":"

\"blizzard\"\u00a0This morning, Andrew Bluestone of the NY Attorney Malpractice Blog<\/a><\/em> pointed to yesterday’s shlep<\/em>\u00a0posting<\/a> on unbundling.\u00a0 We had included Forrest Mosten’s quote: “legal malpractice insurance carriers are looking to write policies for lawyers to unbundle and are hoping to give lower rates for lawyers trained and competent in the area.”\u00a0<\/p>\n

Andrew said<\/a> “We have never heard of this before,” and that reminded me just how chilly New York State’s bar has been toward unbundling.\u00a0 Because the primary offices of about 120,000 active and retired lawyers (10% of the nation’s total) are in New York State, and because it is my home state, I thought I should take this opportunity to complain a bit about the NYState of affairs when it comes to limited representation in litigated matters.<\/p>\n

As we’ve reported, many states have been embracing the use of unbundled, “discrete task”, services in order to increase access to justice in civil matters for the poor and middle class in America, and assist pro se<\/em> litigants.\u00a0 See, e.g<\/em>. “California Expands Unbundling to all Civil Cases<\/a> (Nov. 1, 2006), and Mass. project<\/a> allows limited court appearances” (Oct. 29, 2006), which lists other states.\u00a0 Despite progress elsewhere, Rochelle Klempner’s presentation to a May 2006 Conference<\/a> on Access to Justice for the Self-Represented (which was hosted by the NYS Courts and included a session<\/a> on Unbundling), noted that “To date, New York has neither adopted nor proposed any changes to its Disciplinary Rules or Civil Practice Laws and Rules.”\u00a0\u00a0Her paper, “Unbundled Legal Services in Litigated Matters in New York State<\/a>\u00a0(May 2006, 14 pp. pdf) looks at the history of the issue in the State, and explains that: <\/p>\n

“[M]any in New York agree that unbundled legal services is a sound mechanism to provide poor clients with greater access to the justice system. However, there is concern that unbundled legal services may not be appropriate in litigated matters. The debate surrounding widespread use of unbundled legal services in litigated matters focuses primarily on whether or not attorneys should be permitted to make limited court appearances, and under what conditions attorneys may draft court documents, on behalf of otherwise self-represented litigants. There are significant procedural, ethical and administrative issues to consider.”\u00a0<\/p><\/blockquote>\n

It is telling, I believe,\u00a0that Klempner’s paper is subtitled “A Proposal To Test the Efficacy through Law School Clinics.”\u00a0 It seems that the best hope\u00a0for making\u00a0unbundling palatable to the NYS Bar is to focus on programs to help the indigent.\u00a0 That is reminiscent of the NYSBA approach to mediation circa 1990 — it was only supported by the Association in non-profit community centers\u00a0that used\u00a0volunteer mediators, and not as a service for the broader public who were expected to hire lawyers for divorce and other matters beyond small claims court.<\/p>\n

\"NYg\"\u00a0 The Bar’s reluctance to support litigation unbundling can be seen in a Report that should have been the ideal vehicle to embrace the concept.\u00a0 In Decmber 2002, the NYSBA Commission on Providing Access to Legal Services for Middle Income Consumers released its Report and Recommendations on \u201cUnbundled\u201d Legal Services<\/a> (2002, 14 pp pdf).\u00a0 To put it mildly, the Report was a disappointment\u00a0to consumer advocates and all those who believe that the Middle Class very often cannot afford “full-service lawyering” and should not be required to take it or leave it.\u00a0<\/p>\n

The NYSBA Unbundling Report’s “recommendations” included:<\/p>\n