Legal services go a la carte

By KATHARINE WEBSTER  Associated Press
CONCORD, N.H. – When Mary Noyes’ husband asked for a separation four years ago, she asked a lawyer in her family business to recommend a good divorce attorney.
At the first meeting, lawyer Elizabeth Scheffee told Noyes, who lives in Freeport, Maine, that she could handle the whole divorce or coach Noyes through mediation – required by Maine law – and provide help as needed. Noyes chose the second alternative.
The disintegration of Noyes’ marriage left her heart “in a mud puddle,” she said. Yet over the next six months, the couple managed to agree on custody of their two daughters, child support and division of their real estate, investments, cars and boats.
Scheffee told Noyes what to expect, outlined her choices, filled out the necessary forms and drafted the final agreement. But Noyes and her then-husband, who also was coached by an attorney behind the scenes, negotiated the terms themselves.
Noyes liked being in control instead of being swept through the process by experts. Yet she also needed objective, professional advice at a time of great vulnerability.
“The most valuable part is there is an active role, as opposed to just being told what to do and what my rights and responsibilities were. You can choreograph and build an agreement that hopefully is amenable to both parties,” she said. Also, “It’s always great just to pay for what you need.”
A decade ago, that would have been impossible. But starting in 1999 with Colorado, states began adopting rules allowing lawyers to provide a menu of limited legal services to people who can’t afford an attorney from soup to nuts. Maine, New Hampshire, California and Florida are among them, and most other states are considering such rules.
The change is driven partly by judges and bar associations trying to help the overwhelming number of people representing themselves in court, or appearing “pro se.”
“It’s a response to the pro se dilemma throughout the country: Let’s try to get you some help when you need it, when you want it and in a manner that you can afford,” said John Norton, a Keene attorney who worked on New Hampshire’s new rules and corresponding ethics rules for lawyers.
About 70 percent of family law cases in Maine and New Hampshire involve at least one person without a lawyer, court officials and lawyers say. The National Center for State Courts says there are no national statistics, but some states and other jurisdictions report comparable numbers, especially in family law and probate cases.
Consumers also are able to get more legal information online, while lawyers are facing the fact that most potential clients can’t afford a full-service divorce, said Jeanne Charn, a senior lecturer at Harvard Law School who advises the American Bar Association’s Committee on the Delivery of Legal Services.
Starting in the mid-1990s, courts began responding. They put forms and rules in plain English and online; set up self-help centers at courthouses; and hired mediators, neutral evaluators or case managers to guide people. Lawyers adapted.
“One of the things lawyers began to offer was, ‘We’ll help you with your issues, we’ll help you decide, we’ll prepare you, we’ll go to court with you if you want.’ But they broke it down into discrete fees for each service,” Charn said. “In some sense, it’s a consumer-oriented movement.”
Noyes said her divorce was “pretty ugly” when she was in the thick of it. But where court battles often add fresh wounds, Noyes believes Scheffee’s coaching helped her get past the hurt and achieve an agreement she could live with.
As a result, communication with her ex-husband has improved and their daughters have benefited, she said.
“I have no doubt he wants the best for the children,” she said. “If we didn’t have any kids, the divorce probably would have been a no-brainer.”
They also saved money. Scheffee, who pushed for “unbundled” legal services as president of the Maine Bar Association in 2001, said a full-service divorce costs $5,000 to $8,000. But coaching someone like Noyes costs about $1,000 – more if real estate or children are involved, less if the divorcing partners have already negotiated an agreement and just need someone to put it in a legal document.
“My retainer from soup to nuts is four times what it is for unbundling, and it usually needs to be replenished, whereas most of your unbundled clients get a refund,” she said.
New Hampshire’s rules took effect July 1 and apply to all civil cases. Even at the state Supreme Court, 25 percent to 30 percent of appeals are filed by nonlawyers, Associate Justice James Duggan said. Most are in landlord-tenant actions, small claims cases, petitions filed by prisoners and post-divorce disputes.
“A lot of them are handwritten. I mean, people do the best they can, but our concern is people may have a good issue and they don’t raise it,” Duggan said. “What we hope is those people who are representing themselves will go to a lawyer to help them with a significant piece of the litigation, and that will help the courts.”
The new rules also protect lawyers, said Amherst attorney Honey Hastings. If a lawyer starts a full-service divorce and the client runs out of money, the lawyer has to get a judge’s permission to withdraw if the client objects.
Now lawyers and clients can sign a contract specifying exactly what they will and won’t do and how much it will cost. If the client stops paying, the lawyer can stop working.
“Before, if the client stopped paying you – and they might be into you for thousands of dollars – you might not be able to get out of the case,” Hastings said. “It made lawyers say, ‘I’m not going to take a case,’ or ‘I’m going to have to charge more money,’ and I think that priced some people out.”
 

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