Solo Practice

I Can Unbundle The Case, But I Can't Unbundle My Heart

By Carolyn Elefant

I want to wholeheartedly embrace the concept of unbundled legal services, I really do.  After all, what's not to like?  The demand for affordable legal services is greater than ever.  With courthouses overrun by pro se litigants, even judges are advocating for unbundled legal services.  Technology is empowering a generation of educating, sophisticated consumers who actually want to take on increased responsibility for legal affairs.  And finally, given that companies like Legal Zoom, which aren't even lawyers, are providing unbundled legal services through forms, lawyers should surely have the ability to compete and offer the same services as well.

And yet, much as I support the unbundled legal services in theory, I'm not so sure that I could deliver unbundled services in practice without losing a bundle myself.  Because if an issue came up in the course of a case that was beyond the scope of my agreement but nonetheless critical, I'd probably take wind up taking it on, whether or not ethics rules or malpractice considerations compelled me to do so.

Case in point.  Last summer, I volunteered to take on a foreclosure case as part of Maryland's pro bono foreclosure defense program.  The case assigned to me wasn't yet in active foreclosure, and I was told that all that I'd have to do was negotiate a loan modification for the client.  And thus, my pro bono retainer provided that I'd assist with renegotiation.  Nothing else.

Except...neither the law in general nor the law of foreclosure is so clean and neat.  What I didn't realize at the time I accepted the pro bono case was that only a scant percentage of loan modifications are ever granted permanently.   And that the waiting period between a trial modification and permanent modification could take months, during which time the lender can reactivate its foreclosure action.

That's precisely what happened in my pro bono case.  I secured a trial loan for the client, and while waiting for a decision on a permanent modification, the lender initiated foreclosure proceedings.  Not surprisingly, the foreclosure action was defective both procedurally (non-compliance with Maryland's rules and HAMP guidelines) and on jurisdictional grounds (both the Trustee, acting on behalf of the putative lender, and the lender itself lacked standing).  

Even though foreclosure defense wasn't part of my agreement with the client, I couldn't ignore the foreclosure action.  So I called opposing counsel and asked for a dismissal.  OC admitted that the case was prematurely filed, but wouldn't dismiss outright.  Instead, he said that he'd put the case on hold.  Technically, a hold would solve my client's problem because it would allow the modification proceeding to run its course.   If the lender granted a permanent modification, the foreclosure suit would go away.

Trouble is, the hold wouldn't toll the time for my client to file a response and raise objections.  And if the lender turned down the requested modification, my client would need those defenses as leverage.  And by that time, my client's objections would be deemed waived.  So even though my retainer didn't require me to represent my client in a foreclosure action in court and even though I'd come up with what some might view as an acceptable band-aid  (put the case on hold), neither of these approaches in my view satisfied my obligation as a lawyer to provide zealous representation to my client.  So after about 20 hours of research and dissecting all the transactions (remember, I'm a novice at all of this plus a bit of a research nerd), I filed a motion to dismiss, and I'll be in court next month to argue it.

Right after I'd extinguished that fire, my client sent me paperwork on another matter.  Turned out that he'd owed some debts and worked out an agreement with a debt consolidation company to make the repayments.  The debt consolidation company stopped making the payments, and the creditor filed a writ of garnishment.  Now clearly, this issue fell outside the scope of the foreclosure matter, right?  Well, not exactly.

If my client's wages were garnished, he'd no longer be able to continue to make the monthly payments necessary to keep his trial modification.  As such, he'd be disqualified for consideration for a permanent modification - which was what I'd originally been tasked to achieve.  So in order to preserve my client's ability to get the modification, I needed to address the garnishment issue, even if technically, it was unrelated to the foreclosure matter.

In addition, as with the foreclosure papers, the garnishment action was rife with error.  It identified the wrong garnishee, the wrong amount due on the judgment and the wrong creditor, for heavens' sakes.  Now if this had been an unbundled situation, I could have whipped out a motion to dismiss and given it to my client to sign and file.  But I knew that filing a motion to dismiss wouldn't help in the short term, because the employer is obligated to withhold wages once the writ is filed.  So if the motion to dismiss took a month to resolve, my client wouldn't get his check, thus jeopardizing his foreclosure payments. 

As an attorney, I could call the other side and try to force a dismissal, then offer to renegotiate payments.  But my client would not have the same leverage.  And even as an attorney, getting the writ dismissed involved a set of emails to the opposing counsel that bordered on stalker-ish (since I wasn't getting a response), two phone calls and a draft motion (since I hadn't heard and figured that I'd have to file a dismissal after all).  But just a few hours ago, I learned that the garnishment action will be dismissed and that we'll reinstate a payment plan similar to the one that my client had with the consolidation company.

In my lawyer's mind, I can neatly dissect all of the separate elements of my client's foreclosure proceeding: the loan renegotiation, the foreclosure case in court, the garnishment.  With my lawyer's hand, I could draft a wicked retainer letter that isolates each element and specifies those which I'll handle and those which I won't.

Yet even though I can unbundle the case, separate it into tiny, manageable pieces, I can't unbundle my heart.  Though I don't advocate an over the top, scorched earth strategy in every case, at the same time, I couldn't overlook damaging tangential issues or adopt a second rate approach that won't solve my client's problem simply because I haven't been paid to do more. 

Perhaps that's what judges are counting on when they advocate for unbundled legal services:  that lawyers' sense of compassion or ethics or professionalism will convince them to stay in a case even if it's not necessarily what they signed up for. 

Full post as published by My Shingle.com on February 22, 2010 (boomark / email).