#143: The Past, Present, and Future of Unbundled Legal Services, with Forrest Mosten

Episode Notes

Transcript

SOURCE

Voiceover: Welcome to The Lawyerist Podcast with Sam Glover and Aaron Street. Each week, Lawyerist brings you advice then interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. And now, here are Sam and Aaron.

Sam Glover: Hi, I’m Sam Glover.

Aaron Street: And I’m Aaron Street. And this is episode 143 of The Lawyerist Podcast, part of the Legal Talk Network.

Today we’re talking with the father of unbundled services, Forrest Mosten.

Sam Glover: Today’s podcast is sponsored by Ruby Receptionists and its smart, charming receptionists who are perfect for small firms. Visit callruby.com/lawyerist to get a risk-free trial with Ruby.

Aaron Street: Today’s podcast is also sponsored by Clio Legal Practice Management Software. Clio makes running your law firm easier. Try it for free today at clio.com.

So Sam, Lawyerist has been around for 10 years and in that time you’ve probably either written or solicited 50 posts related to unbundled services and alternative pricing models and I’m excited for today’s conversation but I’m also a little wary because it’s hard for me to conceive how this is still a thing we need to talk about.

Sam Glover: It is. Forrest is great. He started calling it unbundled services, he was one of the pioneers of it. He does it very old school and he admits that during our show. But I can’t believe we still have to convince people that they should be considering limited scope representation and unbundled services as one of the models that they use to approach law practice. It’s really common sense to me and it was common sense to Forrest a long time ago and I wish it were common sense to everybody ’cause it would be a pretty key thing to help close the access to justice gap by letting people get less services but still adequate services for less money.

Aaron Street: Is it fair to assume that we think there are hypothetical straw men, boogeymen out there who still object the idea that this is an okay solution?

Sam Glover: I’m sure there’s some people who object. Most of the time it’s like anything else, it’s what I’m doing seems fine to me and so I don’t really need to do anything different. That seems like the biggest enemy of progress to me.

Aaron Street: So it’s inertia not hatred.

Sam Glover: Yeah, I think so.

Aaron Street: What I would like is if this were a really controversial subject and if there’s a podcast listener who’s really fired up about what bullshit unbundled services is how the billable hour or contingent fee can never die in their practice area. I want them to pick a Twitter fight with you or something after this episode.

Sam Glover: Fair, if you’re listening and you think unbundled services are stupid and unethical or just stupid, hit me up on Twitter, drop me a line and I’d like to have you on the podcast and we can fight about it. But barring that, let’s learn from Forrest and then just everybody do it so we don’t have to keep talking about it.

Aaron Street: Indeed.

Forrest Mosten: Hello, I’m Forrest Mosten and I’m in Los Angeles, I’m a fellow attorney who works in family law and never goes to court.

Sam Glover: Same, we’re about that. How do you avoid court?

Forrest Mosten: I’ve been sober for nearly 20 years. Made a decision that courts are the place of last resort but that the people I try to help usually end up much worse and much poorer no matter what kind of a job I was doing and I so decided to devote the rest of my career to working with people to resolving conflict outside of the court system.

Sam Glover: So your focus is family law, right? You focus on mediation and collaborative divorce, it sounds like.

Forrest Mosten: Yes. As well as working in a limited scope manner with people who otherwise aren’t represented.

Sam Glover: Which brings us the focus of the podcast which is that you came up with that whole concept, it sounds like. Or at least you were instrumental in it.

Forrest Mosten: Lots of people have contributed to it, Sam and let me just say that the presence of unrepresented litigants is both an opportunity and a challenge for the families of this country and the court system and we had to try to find a way that would help those people who either could not or chose not to have lawyers to get some help to both protect their rights and keep their matters private and within their family.

Sam Glover: How did you come up with the concept? Or how did you begin doing limited scope representation?

Forrest Mosten: It’s actually a great story. In the late 70s I was assistant regional director for the Federal Trade Commission in Los Angeles and we were investigating the real estate industry and at that time as now, many people don’t want to pay a 5, 6, or 7% commission to real estate brokers. So they wanted to sell their houses themselves. The problem was, how do you get a buyer, even if you have your own flags and escrow documents, et cetera that you can buy from a commercial company such as Help You Sell and there are others on the market. The way that consumers found buyers was through what we called maverick real estate brokers. Brokers who were willing to unbundle their services and just let for a flat fee, let the home buyer get onto the Multiple Listing Service to which the brokers were subscribers.

You can imagine the other real estate brokers saw red there and were not very happy and started to blackball these maverick brokers. So the Federal Trade Commission investigated that and we were able to work out some [unclear] and that was in 1979. I went back into law practice, practicing family law and mediation and about 12 years later, it’s funny how good ideas sometimes take, have a long latency period, I was serving on an ABA committee that was studying unrepresented litigants and the findings, this was in Arizona, the findings of the researchers commissioned by the ABA, were that this was an exploding phenomenon of people representing themselves but they didn’t do so well. They didn’t do so well in achieving their rights and being able to handle it in an adversarial lawyer dominated world. And the conclusion was if they just had a little bit of help, little bit of legal help, it might work.

I’m sitting in a meeting and somehow my FTC experience came to my vortex and I said something like, “Why don’t we unbundled our legal services? And just make them available in discreet tasks that people can pay for as they go?” Well, this was new to, not just to me, but to everyone in the room. This committee called the Standing Committee of Legal Services …

Sam Glover: Wait, let me guess, the first reaction was that that can’t possibly be ethical, right?

Forrest Mosten: Actually that’s not true.

Sam Glover: Really?

Forrest Mosten: ABA has been the leader for this type of public interest legal access. They have been the undisputed leaders in getting new rules that would make it easier for lawyers to unbundle and for having policy from the house of delegates that approved it. This committee was at the absolute center of that. The staff council is still there, his name is William Hornsby.

Sam Glover: Oh, of course. Well if Will was there, that makes sense.

Forrest Mosten: If you know him, you know what a wonderful inspiration he’s been over all these decades. It’s really him and the various committee members that came after me that have made this work.

Sam Glover: How did you go about actually bringing that into representation though? I know that it isn’t always easy to introduce a new concept like this into, especially once you get to courts, but even to make clients understand what it is that you’re trying to do.

Forrest Mosten: Actually Sam, it’s a lot easier than you think. People, actually I have a dream. And one of my dreams is that one day there’ll be a rule that says before anyone goes, any lawyer has a client sign a full-service contract, there is a duty to inform the client that limited scope service is available as well so they can make an informed consent, consumer choice. But even without that rule, I found the clients loved that possibility when they were short of money, as most people are and when they have the ability to handle parts of the job it was a, it’s a pretty easy sell. The whole idea of lawyers having retainers and full service meant there’s an option just doesn’t seem to resonate as well with the public as it has done with lawyers. While full service is clearly an option and it’s the preferred option by many, some who can afford it and some who can’t, those who know about limited scope and can find lawyers that will offer it, find that it’s very, very satisfying and meets their needs.

In fact, it meets their needs so much that malpractice insurance carriers encourage actually almost beg their insured to, who are lawyers, to unbundle. Lawyer’s Mutual, one of the most prominent malpractice insurance companies in California has done a major educational effort to get their lawyers, their policyholders, to unbundle and you can guess why. Almost no claims.

Sam Glover: I suppose.

Forrest Mosten: Virtually no claims at all. The reason is that people are satisfied.

Sam Glover: Maybe we should back up. I feel like I just dove right in and started talking about unbundled services and limited scope representation and maybe in 2017 most lawyers, that’s fair. Maybe most lawyers know what it is now. But maybe let’s give some examples. When you give clients that option in your own practice, what kinds of unbundled arrangements do you come to? What do they look like? What is this package or the service? How do you describe it?

Forrest Mosten: I could really talk two ways. One, what is the process look like? And second, what roles, unbundled roles, could I play? Fact, I’ll let you, since it’s your program, you decide which one I talk about first.

Sam Glover: Talk about the roles that you play. Let’s frame it around that.

Forrest Mosten: The most important role, is that of advisor. For a client to be able to come to me and just pay for an hour of my time and I’ve been doing it for a long time and there are a lot of experienced lawyers who in an hour can really help somebody get a plan of action. It is up then to the client, do they want they same lawyer to do the work for them, to be the provider as well as the advisor or do they want to then take it on from there? But it’s that hour that people will pay for and they’ll pay my hourly rate, I have no unpaid bills, which is a great thing for lawyers and for clients ’cause the client never wants to be behind and owe a lawyer money, it doesn’t work very well for the relationship and they have enough problems without being in debt to lawyers. People pay as they go. Advice, whether or not, depending on how much work I’m going to be doing, advice is the foundation.

A second role and I find it the probably the one I do the most, is ghost writing. That is let’s say letters. A client, some of the letters that spouses going through a divorce write each other, should never make it to the open media. They are very brutal and generally not very effective for the person who wrote it. Hurtful to the recipient and devastating to the writer if it ever gets introduced in court against them. In the shadows, a client can bring a letter or an email or a text to me before she or he sends it, I can then look at it quickly, I can say, “Well, maybe this can come out and you might want to redo that and you got yourself a decent letter.” That can save people tremendous unnecessary conflict and certainly expense.

A second way is that they, the client thinks they need my letterhead to be on the letter.

Sam Glover: Oh yeah, people really think that.

Forrest Mosten: And they want me to write the letter but I won’t do anything else. So I’ll write the other client or his or her lawyer and indicate that I’ve been hired just to write this letter to articulate my client’s position and the response should go to my client. If my client wants the response to go to me, then I will handle the negotiations. But they don’t have to. They can unbundle the drafting from the representation and negotiation. When people are negotiating themselves, as often happens in family matters, they’re sometimes actually living in the same home, I can act as a negotiation coach. Clients come in, let’s say it’s the husband, I play the wife and we pretend that we’re at Starbucks having a latte and the husband says, “And regarding summer camp, I would like X.”

And they don’t always say it in such a non-adversarial tone. So then we go over it. And we might switch roles. I’ll play him and he can play his wife and see how it feels. That is a simulation practice. I can’t overstate how important that is so that people can work out their own situation without lawyers, without mediators, they can just do it.

Sam Glover: We need to take a quick break to hear from our sponsors and when we come back I want to talk more about how you decide how to price this. Because you talked about one of the benefits of being that you never have to worry about collections. I want to touch more on that. We’ll be back in just a few minutes.

This podcast is supported Ruby Receptionists. As a matter of fact, Ruby answers our phones at Lawyerist and my firm was a paying Ruby customer before that. Here’s what I love about Ruby. When I’m in the middle of something, I hate to be interrupted so when the phone rings, it annoys me and that often carries over into the conversation I have after I pick up the phone which I why I’m better off not answering my own phone. Instead, Ruby answers the phone and if the person on the other end asks for me, a friendly cheerful receptionist from Ruby calls me and asks if I want them to put the call through. It’s a buffer that gives me a minute to let go of my annoyance and be a better human being during the call. If you want to be a better human being on the phone, give Ruby a try. Go to callruby.com/lawyerist to sign up and Ruby will waive the $95 setup fee. If you aren’t happy with Ruby for any reason, you can get your money back during your first three weeks. I’m pretty you’ll stick around but since there is no risk, you might as well try.

Aaron Street: Imagine what you could do with an extra eight hours per week. You could invest in marketing your firm, you could spend more time helping clients in need or you could catch your daughter’s soccer game. That’s how much time legal professionals save with Clio, the world’s leading practice management software. With Clio, tracking time, billing and matter management are fast and easy giving you more time to focus on what really matters and Clio is a complete practice management platform with plenty of tools and over 50 integrations to help you automate daily tasks such as document generation and court calendaring. See how the right software can make it easier to manage your practice. Try Clio for free today at clio.com.

Sam Glover: Okay, and we’re back. Forrest, you talked about one of the benefits being that when you do unbundled services you get paid upfront and you’re not carrying bills from your clients. How do you think about pricing? How do you price your unbundled services and how do you talk about that with clients?

Forrest Mosten: Sam, I never thought I was about to say what I’m about to say but I’m a first generation unbundler. I’m almost a horse and buggy unbundler. There have been a lot more wonderful models that have come since I’ve started but I still do it the old fashioned way. People pay me for my time, they know how much, I give them an estimate of how much time that will be and that’s all I’ll do. If they want an hour or two, that’s what they’ll pay for and I won’t give them any more time and they’re done. Other wonderful lawyers do a flat fee for various work whether it’s drafting or it’s negotiation or working by the day and people can really get even a better consumer idea than working from with me.

Sam Glover: It seems to me that with limited scope representation, limiting the scope is really key especially when you’re billing by the hour and so there’s no automatic endpoint that you might be understood. Does that mean you’re assigning a retainer every single time you agree to do work for a client?

Forrest Mosten: No, you start with a special limited scope agreement and actually many states have templates that are available and I have the one that I use and it’s got a little checklist and the checklist is what are the services that I’m going to work on. One of those that I’ll never work on is making a limited court appearance for clients. I never do that ’cause I’ve retired from my court work. But there are really qualified family lawyers who will make a limited scope appearance and not have to do the whole thing but just do one hearing or one motion and that’s it and the client will be able to do the rest of it and keep the cost down. There are in many states, and I can think of right now in Maine, in Colorado and Florida and California, approved forms that the courts will take and other counsel will respect that indicates the limitation of scope.

That is a real benefit for clients because number one, the lawyers aren’t afraid to make a limited court appearance because after the appearance they can get out and they don’t have to keep representing that client and the client doesn’t have to keep paying. In the many states I know your podcast may go well beyond the states I mentioned, in those other states the public and the lawyers don’t have that advantage. In fact, there’s going to be a national unbundling conference, I don’t know if you’re aware of that.

Sam Glover: Yeah, tell us about it.

Forrest Mosten: It is on the 26th and 27th of this month in Denver and it is the second national unbundling conference. The first was in 2000 in Baltimore. Now 17 years have gone by and in those 17 years the state of the art right now is that most states have the laws, they just don’t have the implementation. This is called an ABA Implementation Conference to try to get states to get unbundling and limited scope work into the courts, get educational programs approved by the states and get lawyers on the local level to learn about it, get trained in it and offer it to clients.

Sam Glover: Can we expect to see model rules and templates coming out of this, for example?

Forrest Mosten: The interesting thing is the rules are there. They are in 40 states, they have limited scope rules and opinions. It isn’t the rules, it’s the implementation of those rules. There’s going to be actually a national unbundling training for lawyers on the 5th and 6th of March in Chicago. Are you aware of AFCC, the Association of Family on Conciliation Courts out of Madison Wisconsin? They’re sponsoring it. It’s an interdisciplinary organization, AFCC is well known in the family field for interdisciplinary work and it’s executive director, Peter Salem is very, very supportive of unbundled services and is offering this training and I’ll be the trainer.

Sam Glover: I’ve heard that something like 75 to 85% of family court litigants are unrepresented so it would make sense that there’s almost a crisis or maybe there is a crisis in family law where people really need more help and this seems like probably the only realistic way to get it to them.

Forrest Mosten: It’s absolutely true. It’s absolutely true and it’s obvious to judges, it’s obvious to national organizations and it will be obvious more to the public and to the Main Street lawyer soon.

Sam Glover: What kind of guidance can we give to lawyers who are favorable to unbundling whether because of this podcast or already were but just aren’t sure how to go about implementing it.

Forrest Mosten: The first thing is just to remember the two benefits. One, no receivables. You get paid. And number two, there have been virtually no claims. It’s safe and it’s profitable.

Sam Glover: But aren’t you, this an objection that I can imagine which is, but I want to get paid more. I want the $3,000 retainer. I don’t want the $500 or the $200 piecemeal representation. I want the big chunks.

Forrest Mosten: You talking about the lawyers now?

Sam Glover: Yeah.

Forrest Mosten: Actually there’s two benefits for lawyers. One, the little chunk may be better than no chunk at all. Remember the number of people who go unrepresented completely. And second, it isn’t so easy to represent yourself even with a little legal help and so what happens is that if in fact the other party or lawyer is very, very difficult or doing the work is much harder than the client thought, guess who they’ll hire for full service? It’s that lawyer who was willing to do limited scope service. It is a fabulous way to get new clients.

Sam Glover: And to be realistic the legal process is complicated from end to end because somebody comes to hire you for one unbundled service at the beginning, it is increasingly likely that they’re going to need more throughout the course of their representation.

Forrest Mosten: Sam, you’re exactly right. And people really appreciate it. They really appreciate also the spirit of unbundling. The lawyers that unbundle care about helping. That’s why they do it. You’re not going to make a fortune doing it. On the other hand, it’s a very nice way to make a living.

Sam Glover: Although, I would say so my approach to unbundling in my practice was to do flat fees. Since I wasn’t billing by the hour, I was able to find efficiencies and I found that if I was getting
a day when I was doing one unbundled thing after another, I was usually making substantially more than my hourly fee would have been. If you can scale it, there’s actually plenty of opportunity to make than you would otherwise.

Forrest Mosten: I absolutely agree with that. In fact, Sam, you are welcome to come to this conference.

Sam Glover: I was invited, but I have a conflict.

Forrest Mosten: Okay.

Sam Glover: I’ll be in Disneyland.

Forrest Mosten: Okay, well no one could ever compete with Disneyland. I understand it. Unbundling will always be there but being at Disneyland on a special trip, especially with children is priceless.

Sam Glover: Are there any pitfalls that lawyers should look out for? Things that they can get into trouble with unbundling?

Forrest Mosten: Of course, just like in any practice. Only handle what they’re competent to handle. Don’t do things that you’re not comfortable with or capable of. For example, if somebody comes in with one day to go with a huge summary judgment motion or other big task, the answer is I’m sorry, had you only come in two weeks ago, I would’ve been glad to help you. I can’t do it now. There is no pass for malpractice for the work that lawyer takes on and there shouldn’t be. They are required to serve the public with a reasonable standard care and it doesn’t matter whether they’re unbundled or they’re full service. Where it benefits is that because there is a written agreement and there must be a written agreement, that’s another pitfall is that if a lawyer just gets so busy to start helping, they don’t have a written, a limited scope agreement which is required for informed consent then there could be problems down the road.

Sam Glover: You alluded to one of the other problems earlier which is same thing, which is accidentally getting yourself into full representation by entering an appearance without getting your limited scope appearance approved beforehand or talking to opposing council as if you’re the full scope lawyer when you don’t mean to be doing that. That’s another one, is you always want to be clear with everyone involved that you are doing the role that you’re doing and you’re not their full service lawyer.

Forrest Mosten: That’s absolutely true. I’d also say that if in fact you can have a state or the state is able to get these pre-approved, judicially approved forms, that is the gateway. It’s the protection for the public and for the lawyers.

Sam Glover: Although I’ve always said, if you have a client and you really want to help them and you have to in for a criminal defense hearing, for example, which is in our state at least, notoriously difficult to get out of a case, what I’ve told people to do is walk in there with your motion for a limited scope appearance and deal with that first.

Forrest Mosten: Well, that’s right. The practice is most lawyers will do that. They do not want to be stuck in on a case and criminal defense though, has often it’s special role. We’ve been discussing limited scope for civil not for criminal.

Sam Glover: And in bankruptcy it sounds like unbundled is almost dirty word. Bankruptcy courts accuse lawyers of trying to have an unbundled representation and sometimes.

Forrest Mosten: It’s changing though. Now many jurisdictions are encouraging it because if there’s one place where people don’t have a lot of money, it’s bankruptcy court. There is a problem you should know in some immigration courts who won’t permit unbundling but that a whole different policy and political issue that we won’t get into here.

Sam Glover: On balance, most judges, most courts in most proceedings would rather have a lawyer helping to speed things along with competent help than to have a pro se person who isn’t knowledgeable or experienced and is just doing their best, usually the help from a lawyer is going to make it easier to move things along and get the thing done.

Forrest Mosten: You’re so right, Sam. I call it the shoebox problem where somebody comes into court with a shoebox full of receipts and they have reimbursements or payments that they want to show the judge and the judge says, “And so Mr. X, could you please just tell me how much money you’re asking for?” And they start pawing through this box and everybody’s watching, the judge gets impatient and of course you’re not going to get all that you’re entitled to. But if you went to a lawyer who even used a paralegal or lower cost associate to go through that box before the hearing to put it into a chart and or a notebook with all the receipts and make one copy for the judge and one for the other side and one for the client, the client’s then good to go and they can present their case very, very well.

Judges also are very uncomfortable about leaning over and trying to protect one side against the other. Some will do it in a very, very nice way but never enough. The research is very, very clear that while judges believe that they will intervene and give the word is, deference to the unrepresented, that the results of someone being unrepresented are catastrophic. It’s not a fair fight. Everyone does better with a lawyer.

Sam Glover: By way of moving to a close here, where should lawyers go for a resource if they want to learn more about how to do unbundling services? Besides Lawyerist, obviously.

Forrest Mosten: If you realize that is a unpaid softball because my new book is just been released in the last month called, Unbundle Legal Services, a family lawyer’s guide, and people can get it off of my website and it’s published by the ABA.

Sam Glover: Fantastic, we’ll definitely include that link in the show notes and you’ve also given us a white paper, a checklist of yours, with tips for starting an unbundled practice and I really appreciate that. Thanks for being on the podcast today. Thanks for talking about unbundled services and I hope we’ll hear more from you soon.

Forrest Mosten: My pleasure, Sam. Thank you for having me on.

Aaron Street: Make sure to catch next week’s episode of The Lawyerist podcast by subscribing the show in your favorite podcast app. And please leave a rating to help other people find our show. You can find the notes for today’s episode on lawyerist.com/podcast.

Sam Glover: The views expressed by the participants are their own and are not endorsed by Legal Talk Network. Nothing said in this podcast is legal advice for you.

Continue Reading