You may have heard someone say, “my lawyer” or have used the term yourself. More recently, people even say “lawyer up” when talking about hiring a lawyer for a case.
Traditionally, this means an attorney hired with a retainer and engagement agreement to handle your case from start to finish. When an attorney is retained, that attorney is responsible for handling all communications with the court and the opposing party or counsel. The lawyer is on record with the court and handles every court appearance, court document and court communication. The lawyer e-files the pleadings with the court right through the computer without having to trek to the courthouse. Once you retain an attorney, you can call “your lawyer” whenever you want, ask questions and give assignments. You are the boss.
The “retainer” is the amount you pay up front. Like a security deposit, the retainer stays with the attorney until the end of the case — when anything remaining is refunded. The retainer is your money. The laws about segregating a client’s retainer funds are very strict. In Colorado, lawyers set up special COLTAF accounts to hold the retainer funds. As a general rule, an attorney cannot move funds from the client’s COLTAF account to the lawyer’s operating account until the funds have been earned. The attorney has an obligation to bill the client fairly — either with a “flat fee” (one time payment) or ongoing billing. Most commonly in family law, the client gets a bill once a month. The bill breaks down everything the lawyer did that month, the hourly fee and the total due.
Each month, the lawyer will ask the client to “replenish” the retainer. This is such a lovely-sounding word which means pay your bill so the retainer is back up to its original amount. For example, if you were Don Corleone, you might have Tom Hagen on a $5000 retainer. At the end of the month, he sends you a bill saying he spent 10 hours at $200 per hour working on your IRS issue. He earned $2000 which means there is … wait for it … $3000 left in the COLTAF account (because, of course, Mr. Hagen and Mr. Corleone are scrupulous about honest book keeping.) Mr. Corleone needs to replenish the retainer back up to $5000 wich means he needs to pay another $2000 into the COLTAF account.
Sometimes a person has a very pressing and important family law issues on the table but doesn’t happen to have the standard $2500 to $5000 for a retainer. Or a person may have one small legal issue and only needs to meet with the attorney once or twice to do something specific like reading a paper or going to court or mediation. This person may be a great candidate for “unbundled legal services.”
With unbundled legal service, the attorney is not retained. The attorney is not on record with the court. The client can ask the attorney to do something, but both are the boss when it comes to whether the lawyer does it. The lawyer can do the work or decline it. The client can ask the lawyer to do something or can do it on his or her own. Going to court, for example. The client can go alone or can have the attorney go. With unbundled legal services, there is no retainer or a small fee (less than $500) to cover ongoing costs.
It’s “unbundled” because the individual legal tasks can be paid separately.
A client pays up front on an ongoing basis for the work. If Don Corleone wants Consiglieri Tom Hagen to go to mediation with Virgil Sollozzofor two hours, he can pay the $200 per hour (ie. $400) up front.
One thing to remember with unbundled — a lawyer is not like Superman or Wonder Woman, able to fly into court and save the day on the spot. Lawyers are mortal and our best work comes from preparation. We need to read the documents. We need to know the law. We need to form a strategy. All this takes planning. So a court appearance or mediation is not just the time in court but also an hour or more to prepare.
One of the best uses of unbundled legal services is to review a document and make changes. The client writes a draft and the attorney gives feedback. NO ONE should get divorced without an attorney looking over the separation agreement and parenting plan to make sure they are fair. This could take as little as an hour or less. But it is critical because these documents are very technical and can last a lifetime.
I work on retainer and unbundled legal services. Which form my representation takes is not that important to me. The main thing for me is to tailor the work to the individual client, working with his or her strengths and weaknesses as a team. If you are good at paperwork, I will suggest you save money by doing it all on your own. If you procrastinate and hate paperwork, I may suggest our clerical staff takes over. If you are a good writer, you may do your own first drafts. If you are good in court, you may want to save money and go it alone. Most people, however, hate going to court. They get emotional and stressed and I don’t blame them. It is a unique process requiring knowledge of the law and the ability to think quickly on your feet. I certainly would not stroll into Vegas expecting to clean up on the poker tables without training, skill and experience. Court is not Vegas, but it can feel that way to those who stroll in unprepared. Even a half hour meeting with an attorney before court can set you on the right track. Unbundled.
Please call me and let me know if this makes sense. I am happy to talk to you about unbundled legal services. They are truly a blessing to clients without money for a retainer.