Unbundled litigation services including not acting €˜on the court record'

An unbundled service separates a package of legal services into separate tasks. It typically involves providing discrete and limited legal advice and assistance to a client who is acting in person. For instance, a client may wish to instruct you to provide a one-off service such as checking a legal document, advising on a particular issue or even attending as an advocate at a hearing on an unbundled basis. As the client is acting in person, you will not go on the court record, deal with correspondence directly or file court papers in the usual manner.

As a general rule, we do not undertake unbundled work. However, subject to the following strict conditions, we can accept some unbundled retainers:

1. The written consent of the General Counsel is required in advance.
2. We will not act on an unbundled basis for clients who have not used the firm before.
3. We will not act on an unbundled basis where it poses a risk to the firm that exceeds the benefit of the fees to be earned. Risk is increased by having a large amount of papers to be read before advising or where our advice is to be used as a cornerstone for further work to be done by the client acting in person.
4. Our Engagement Letter must tightly define the scope, our duties and how our work can be used. It must also warn the client about all the other parts of advice the client needs that are not part of the unbundled retainer. All warnings need to highlight the impact on the client of your not undertaking the relevant task.
5. Unbundled retainers should not exceed 10 days and would typically be much less. Our Engagement Letter must be clear when our retainer ends. Retainers cannot be allowed to be left open ended.
6. Where during the unbundled retainer you learn of something else about which you need to warn the client, then you must do so in writing.
7. At the end of the unbundled retainer, you must write to the client confirming that the retainer has ended, identifying any forthcoming deadlines or procedural steps known to you and reminding the client that no further work will be undertaken unless a new retainer is agreed.
8. Except where expressly agreed as part of the retainer, all communications should be conducted through the client. The client should be informed that the firm will not ordinarily communicate directly with third parties and that the existence of the retainer may not be apparent to others involved in the matter. The exception to this is where the entirety of the retainer is to produce a single written document destined for others, e.g. a court form or a settlement offer.
9. During the unbundled retainer you can never do anything transactional - that is where you do one thing and respond upon the happening of a further thing. So, for example you can never go on the court record, accept service of documents, hold the client's documents or instruct experts.
10. Unbundled retainers are the exception rather than the rule. Where there is any doubt as to whether the client can properly manage the aspects of the matter falling outside the scope of the retainer, a full retainer should be offered instead or the instruction declined.
11. Before accepting an unbundled retainer, you must consider whether the client is capable of acting in person and implementing the advice provided. Particular care should be taken where the client is vulnerable, lacks litigation experience, has communication difficulties or appears unable to understand the limitations of the retainer.
12. Scope creep is a particular risk in unbundled matters. Any request for assistance outside the agreed scope must be treated as a new instruction and documented appropriately. Informal queries or follow-up assistance should not be provided without considering whether a new retainer is required.
13. A clear written record must be maintained of all advice given, all assumptions made and all limitations on the retainer. Attendance notes and written advice should be sufficiently detailed to demonstrate the scope of the work undertaken and the warnings given to the client.