professional and client needs
By Cliff Collins
A key component of Oregon’s bold, internationally recognized experiment in reinventing family law has been the unbundling of legal services.
Unbundled legal services, also called discrete task representation, involves attorneys handling only limited parts of a case. Unbundling attempts to address two challenges: that domestic relations cases represent the largest, fastest-growing segment of civil court matters, and that in as many as 80 percent of family-law cases, at least one side has no legal representation.
'Even though they don’t have to have a lawyer, anyone is going to be better off if they have a lawyer’s advice,' observes Megan E. Hassen, an attorney who is an administrative analyst for the Marion County Circuit Court. The court was active early on in establishing a court facilitator program and organizing pro bono unbundled services, where, say, a lawyer would 'come in for a half hour and sit down with these folks,' or sometimes agree to represent them pro bono. 'We have a whole bunch of people who don’t qualify for Legal Aid but can’t afford a lawyer for full representation.'
Hassen says the revamped system is going well for lawyers who participate, but 'not enough people are doing it.... We’re trying to get lawyers to think about doing this, but lawyers are trained to do the whole thing.' She thinks some attorneys are hesitant because of malpractice fears, given that they would handle only some aspect of a case and not know the client’s background.
But Beverly Michaelis, a practice management adviser with the Professional Liability Fund, says: 'We don’t look at (unbundling) as any different from other limited-scope representation. There are some screening steps you need to take.... I don’t know that we see a lot of additional risks' with unbundling. Start with careful client and case screening, she advises, and prepare a carefully worded engagement letter outlining exactly what you will and will not do. Also, she adds, be sure to specify what the responsibilities of the client entail.
More and more, family lawyers are incorporating features of unbundling into their practices — in short, limiting the work they do to one or more aspects of family law. Meet four attorneys who illustrate this trend.
Help Clients to Navigate
What if you love family law but hate adversarial situations and litigating? For Sandra E. Purnell, unbundling was the answer.
Purnell, who practices in Enterprise and La Grande under the shingle 'Transitions: A Non-Adversarial Divorce Service,' says she 'kicked the habit' about 1996. That means she handles only uncontested divorces and provides legal counseling and legal assistance, but does not represent the client. 'I never would go back,' she says. 'It’s just not my cup of tea.'
Purnell, a native of Detroit, has lived in Massachusetts and went to graduate school in Minnesota. She taught communication skills in college for two decades before becoming a lawyer. After finishing law school at the University of California, Los Angeles, she went to work for a small family-law firm in Beverly Hills. 'Very wealthy clientele and attorneys who were very aggressive,' she says. 'I walked right into the very worst side of family law.' She lasted three years.
Next she taught at UCLA law school for a year, then opened her own practice in a ski resort town, Mammoth Lakes, in the eastern Sierras. She spent five years there. 'It was interesting. It was a very small town with quite a few lawyers — more than the public needed. I was kind of disgusted. It was still competitive and contentious.' She worked some with a local mediation service and as a family law facilitator in California. This exposure to a different way of doing law prompted her to move to Eastern Oregon, where she set up shop in 1999. 'Since then, I’ve done unbundled, non-contested cases, and divorce mediation with both parties.'
Purnell found what she was looking for in a location that was a world away from Los Angeles. 'I was looking for a different type of challenge,' one with more 'hands on,' especially working with families 'in a problem-solving realm. Family law is absolutely fascinating to me as a lawyer, (but the way) it’s practiced was demoralizing. I hated fighting with people all the time. We were making difficult situations worse instead of better. I found that totally unacceptable. I decided I would not do that anymore.
'I see practicing law as providing a really valuable service to people who need it,' Purnell says. 'Adversarial law does not do that for most people. I see unbundling as a way attorneys can provide services calibrated to what their clients need and what they can afford. It’s respecting the client’s autonomy to make their own decisions ... putting the attorney into the role of consultant. We used to be called ‘counselor at law.’ It doesn’t mean I have to take over your case.
'Business attorneys already did this — counseling with people without taking (full representation). Other attorneys have done it for years — writing a will, doing a guardianship are comparable.... Family law has drifted so far into the litigation area, we have lost track of our original purpose of helping (clients) navigate. It’s not totally revolutionary, but going back to our roots.'
Purnell screens potential clients carefully. If she decides to work with a client and then later learns that the client’s case is becoming contentious, 'I have to hand it off,' she says. She designed her own agreement letter. 'I use a very straightforward, written agreement that specifies clearly what I am going to do and what they are going to do. If they want my help, they have to pick out what they want, and it specifies what it will cost.'
She says the demand is high for the type services she offers. 'It’s still more expensive than what some people can afford. Fortunately, there are many people who need this and can benefit from it.'
Purnell has talked to a few other lawyers who express interest in doing her type of unbundled practice, and she encourages them to do so. 'I love the work I’m doing. I love the place I’m living.' She also hasn’t totally given up city life: 'I hit Portland once a month' to go to restaurants, theater, shopping or meetings.
Provide a ‘Good Deal’
Pamela Rose Novak, who practices in Beaverton, switched to 'uncontested only' five years ago. She calls what she does 'limited representation.' An attorney for eight years, she got some early exposure to criminal law by spending her internship in the Los Angeles district attorney’s office. A graduate of Southwestern University School of Law in Los Angeles, she gravitated to family law as she realized the demand for it.
Novak volunteered as an advocate in Washington County to gain experience and exposure to the court. She started and stayed in solo practice, working nights at Fred Meyer at the beginning to make ends meet. She helped people fill out restraining orders, took cases from start to finish, defended people in court. Although she is a trained family law mediator, she found that being an advocate better suited her personality and style. 'I am a strong advocate of mediation and recommend it to many clients.' If a case becomes contested, it is usually referred to another attorney; occasionally, Novak will continue on a case that is 'mildly contested.' When it comes to determining if a case is contested, she 'has a good nose' for figuring out which cases are truly contested. Of the 150-plus divorces handled each year, less than 10 become contested, she says.
Novak heard about doing uncontested divorces, and then about doing it for a flat rate, and she attended a seminar about unbundling. She arrived at her current practice stance by 'bits and pieces,' and saw the statistics on how many people need lawyers — but how few use them. Her motto is, 'Friends don’t let friends do their own divorce,' and she says she has seen a lot of do-it-yourselfers who gave themselves a bad deal. 'People are uneducated as to the damage they can do to themselves. They have never talked to an attorney; they’ve never been told about their rights.'
Like Purnell, Novak’s background is atypical of the average attorney. She was trained as a chemist and worked in that field for four years but didn’t enjoy it. 'I wanted more control of what I do, over my destiny. I can work for myself as a lawyer.' She says her mind is 'very, very logical,' and she works quickly: 'I have handled over 600 divorces. The bulk of them have been in the last six years.'
She represents clients from 'low-income to many, many figures: I do not base my fee on your income, but on the work I have to do. If you’ve got real property, pensions, kids and so on, I have to do more work, so your divorce will cost more. I prepare everything. Everybody sees me.... I try to do it right.... They need a good, enforceable document. Especially when you have kids and property involved.'
Novak thrives on her mode of practice. About half is family law, the other half consumer bankruptcies and QDROs, which complement her divorce practice. She says some attorneys do both contested and uncontested, but she wants to stick to the latter permanently. 'I like to take vacations. I can go away and nothing happens while I’m gone.' She is 'adamant' about the value of limited representation: 'I can’t save the world, but I want people to know their rights, or I tell people when they are getting' a bad deal.
Encourage the Client
Ingrid E. Slezak calls mediation her third career. A Portland lawyer who has limited her practice to mediation since 1994, Slezak shares one quality with Novak and Purnell: a varied background before taking up law. She was raised in New York City and Los Angeles, and graduated from Harvard University. She worked in Germany as a potter for two years; lived in Canada; married and raised children; and finished at Boston College Law School. Slezak next took a job with a Denver law firm, specializing in medical malpractice and general casualty, where she stayed 10 years. She became a partner and built the firm’s family law section.
Slezak then took a year off to 'sit on the beach' in her beach house on the Oregon coast. She decided to move to Oregon permanently, but didn’t want to be a litigator. She worked for a couple of years as an assistant attorney general. She gained mediation training from the Center for Dispute Resolution in Boulder, Colo., in 1991.
Despite being told she could not make it in a mediation-only solo practice, she set one up all the same, in 1994. 'Now there are more mediators doing what I do, but then there weren’t many,' she says. Meanwhile, she has stayed active in family-law circles, serving on the Oregon Task Force on Family Law, working as a facilitator and developing a parent education program for Clackamas County Family Court Service that has become a mandatory class for Clackamas and Multnomah counties. Slezak currently is treasurer of the executive board of the Oregon Academy of Family Law Practitioners.
A focus of the Task Force on Family Law was 'to try to find more help for pro se litigants,' says Slezak. She is gratified by the changes that came out of the task force’s recommendations: court facilitators, the increasing use of mediation and counties’ parent education classes for families.
She says the disciplinary rules allow attorney mediators to create pleadings for the parties and to file them in court. More and more lawyers now are working with mediators 'in an unbundled fashion,' and 'mediation has become a large part of the settlement process.'
Statewide, about 45 percent to 50 percent of family law cases go unrepresented, she says, adding that she encourages clients in her brochures and paperwork to seek their own legal representation. About half her clients are pro se. Many people who do not use a lawyer don’t have the assets, she says. 'I usually see people who do have the assets, because they could not afford me if they didn’t.'
Slezak says mediation can help reduce the adversarial aspects of divorce, but is 'not necessarily for people who get along. I see a lot of high-conflict people. It can work with really high-conflict clients. A lot of it has to do with whether they trust the process.' She says litigation certainly is sometimes necessary, but in many cases, mediation serves clients better. 'My temperament is better suited to serving clients as a mediator.'
She employs a mediation agreement and a brochure. The agreement explains that Slezak does not represent the client, and that she works on an hourly fee basis. She also set up a website, which is linked to several mediator-referral sites.
In marketing her practice, Slezak began by letting mental health professionals and attorneys know about her work. She stays active in the family law section of the bar, and often speaks at conferences. About 70 percent of her work comes through attorney referral, and the rest from mental health professionals and word-of-mouth through former clients.
Slezak finds time for ocean kayaking, serving as president of Oregon Ocean Paddlers, or OOPs. She has found her place, too, in the legal realm, with mediation. 'I love it. It’s so much more satisfying to me. I love the collaboration with other lawyers. I don’t have the heartache of litigating.'
Seek Resolution, Not Revenge
Steven Allen Smith says he incorporated so-called unbundling elements into his Portland law practice some years before these techniques gained a label. 'Peace-Making: Divorce Without War,' is the theme of his practice. He has been a lawyer since 1974. In the early to mid-1980s, he adopted the peaceful-resolution approach because he considered it 'ethically correct,' he says, and he decided, 'I am going to do this.'
Influenced by Gandhi, Smith says he accepts cases only if the parties are seeking a resolution rather than revenge. He tries to offer a full range of services in return, from clients who need representation in a custody case, to those who cannot afford a lawyer and need coaching in order to self-represent, to those who want the option of having a lawyer step in later in the process if they need it.
He tells clients: 'If you’re going to ask me to prepare a document, that’s what it’s going to cost. If you need me to appear in court, that’s what it’s going to cost.' He tries to show them 'how to get from here to there,' even if they have limited funds. 'How do you deal with the problems these people have in this area? One is financial. Are we going to simply represent them and put them into bankruptcy? Some (cases) reach 10, 15, 20, 25 thousand (dollars) dealing with custody. How can they get a good decision made to protect their kids that doesn’t just result in one person getting an attorney and another not?'
Smith’s practice includes litigation and arbitration. But he also offers a three-month course designed as 'a pre-litigation service for anyone’s client,' which he created for custody litigation for people who want to learn 'how to convert to partner to raise our children.' He also offers what he calls 'self-help arbitration,' and for clients who 'think they have most of an agreement, we will mediate with them.'
His practice provides legal assistants to help clients fill out forms or to prepare the forms. Sometimes the practice charges a flat fee, other times it gives an estimate. Smith supervises but doesn’t get involved in coaching or filling out forms, saying his rate would prohibit that.
His office consists of himself, two legal assistants and a half-time bookkeeper. A native Portlander, Smith obtained a bachelor’s degree in history and a master’s in education of disadvantaged youth, both at the University of Oregon. He got his J.D. from Northwestern School of Law at Lewis & Clark College, and started out in general practice, handling civil and criminal cases. By the late 1970s, he had limited his practice to family law. 'Custody of children has been my main concern,' along with attempting to minimize 'the financial and emotional impact on parents.
'Is there something more that can be offered in custody litigation?' Smith asks. 'I have always thought that my client was best represented by having him or her step back and ask, ‘How do I nurture and support a child despite this?’ '
ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin.
© 2002 Cliff Collins