Unbundling research

The LSB and Legal Services Consumer Panel commissioned MORI to produce an interesting piece of work on experiences of unbundling.  The report defines unbundling has:

an ‘unbundled’ service separates a package of legal services into parts or tasks. The consumer and legal services provider agree which parts of the package the provider will provide, and which tasks the consumer will undertake.

They interviewed 35 consumers, mainly those who had had good outcomes and so who may have responded positively partly as a result.  The sample was designed to include a range of consumers in three areas of law (family, civil and immigration).  They were drawn from Ipsos MORI’s online panel and Ipsos MORI’s “face-to-face nationally representative omnibus survey”.  Of those, 259 had a civil, family or immigration problem for which they had used a fee charging legal service and had agreed to make use of this by way of unbundling (my intuition is that this figure is on the high side).  From these leads 35 interviews were arranged and conducted. 14 practitioners were recruited by a variety of methods: most were solicitors.  Six Judges were also recruited. Five District Judges and one Immigration Judges.

As a qualitative study, the report’s authors indicate:

Qualitative research is designed to be exploratory and provides insight into the perceptions, feelings and behaviours of people. Findings are not statistically representative of the views of all consumers and providers of unbundled legal services, nor members of the judiciary. Although this report includes some indications of how typical views or experiences were across the sample or within subgroups, indicated through the use of words such as ‘most’, ‘many’ and `few’, this should be considered indicative among those interviewed. It does not give a measure of the prevalence of different views among the population of consumers and providers. The perceptions of participants make up a considerable proportion of the evidence in this study, and although such perceptions may not always be factually accurate, they represent the truth to those who relate them.

Within their sample of clients the views were generally positive on unbundling:

  • Unbundling reduced cost, for some clients sufficiently to be the difference between getting some access to justice and not.
  • It provided clients with an extra sense of control, some could take more responsibility this way for their case and act, sometimes, more quickly than busy lawyers.
  • Unbundled services were being requested by clients rather than being marketed by firms, or emerging in discussion with lawyers when clear that the client could not afford for representation (often either whilst they were represented and had to move away from full representation or whilst unrepresented when they had hit a significant complication they could not handle alone).
  • Clients generally felt that the division of labour, whilst not always explicit, was generally well understood by them. They also generally felt they had the confidence and skills to take matters on. Agreements were not always felt to be clear and there appears to have been some anxiety about unbundling being provided by unregulated providers from a couple of clients.
  • Client’s felt they got better outcomes than they would have done without unbundled support (if acting alone).

The providers they spoke to were generally positive about unbundling but also more anxious about the risks. Unbundling had emerged as a response to legal aid, changes in the small claims limit and a more competitive legal services market. It was generally offered on a fixed fee or pay-as-you-go basis, they said (although the clients tend to say they paid hourly). Lawyers were more anxious about the process, in particular:

  • they worried about working on the basis of limited information and with limited control over the matter as it developed;
  • they worried as to whether or clients would understand the limits of unbundling and their own limitations.

In general, amongst this group of respondents, neither SRA regulation nor insurers appeared to be inhibiting unbundling. Conversely, it was evident that some provider approaches were sensitive to risk, with unbundling being more prevalent in lower risk areas.  One provider is quoted as saying:

“I think it’s very easy to make an error, be negligent with regards to a case involving money, property, or whatever, whereas with regards to Children Act cases if you make a mistake you tend to be able to rectify it, and therefore the risk is a lot lower, the risk of being negligent and not being able to rectify it.”

There are some interesting other details in the report.  For instance the report says, from the consumer perspective, arrangements typically took one of the following three forms:

  • Where the provider acted as a legal ‘safety net’ in case anything was wrong. They provided some advice and support, though the consumers did most of the work and required small amounts of provider input.

  • Where the provider was used to add value. Here the consumer performed administrative tasks solely, but used the provider to impart their legal expertise throughout.

  • Where the provider acted as an advocate for the consumer at court hearings. The consumer typically helped with some of the preparatory work.

Similarly, providers who did offer unbundled services appeared to have approached this type of work in one of three main ways, the report says.

1 Some had committed to unbundling as a core element of their business model, and had developed one or more specific products, designed to cover a range of situations. These providers promoted such products quite heavily.

2 Others had also developed specific products, which were again advertised, but for a narrower range of matters, and covering a relatively small proportion of overall workloads.

3 A third, more low key approach, was to offer unbundling as an extra level of service, but on an ad hoc basis; here its availability was not always advertised.

A couple of points are worth emphasising here. One is that the consumers the researchers spoke to appeared to have come solely or mainly through route three. Further, firms were very clear that they needed to think more carefully about how to structure and embed unbundling within their business. Experience elsewhere, in the Californian courts for instance, suggests a range of approaches and infrastructure might be developed by providers keen to do a better job and to steal a competitive march. Put more crudely, unbundling appears primarily to be an ad hoc and experimental endeavour at the minute.

Another interesting point is that consumers had different motivations and expectations:

[One group of] Consumers often spoke about the “clout” a legal service provider offered in terms of their expertise, reputation and leverage to bring about a successful outcome; the provider’s involvement was seen as critical rather than peripheral to outcomes.

[Another] group of consumers were not only cost conscious, they were also aware of getting value for money from their provider. Many saw great benefits in the provider passing on their expertise or using the reputation of the firm in their correspondence, but felt that some of the work required to resolve matters did not necessarily need the input of a legally qualified professional. Consumers were therefore reluctant to pay for services which did not offer anything beyond their own capacity; they wanted providers to offer added value to resolve their matter. As such, consumers often used providers for input where they were not capable of effectively doing something themselves or to enhance or validate work that they had already prepared.

And, it is worth emphasising that providers were very sensitive to whether or not clients had sufficient skill and capacity to undertake parts of their problems. The researchers made a comment which seems to support and echo that, from the consumer’s perspective. The unbundlable client, may not be the typical client, but a relatively competent and prepared individual:

In many circumstances consumers had made a significant start to dealing with their matter by doing research, starting correspondence, or putting their case files and documentation in order before consulting the providers. These consumers appeared to be particularly engaged with the processes, often having researched the steps they would need to take to resolve problems some way in advance. To some extent this may have been a factor behind their willingness to take on some of the work with the legal services provider.

A final comment; as well as the qualitative nature of the research, one of the other limitations is worth emphasising. What this essentially tells us is that clients, and the firm providing bundled service, feel that unbundling is a beneficial service that extends access to justice. Both perspectives are valuable, but we should be wary of accepting them entirely at face value. The providers were clear that bundling with new they were feeling their way.  Clients rarely have the expertise or counterfactual experience to judge whether services in fact useful, for instance. There was much more to be learnt about unbundling.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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