Limited-scope retainers: What’s in it for you?

  • Carolynne Burkholder-James

Limited-scope retainers have been promoted as a way to increase access to justice while giving lawyers access to more clients, but some lawyers remain skeptical.

Also referred to as unbundled services, limited scope retainers allow a lawyer to provide limited services to a client, such as representing the client for only part of a legal matter. For example, a lawyer may draft pleadings on behalf of a client but not represent him or her in court.

Ken Walker, the President of the Law Society of British Columbia, uses the analogy of being a sub-trade on a construction project. “You’re not building the whole house. You’re called in to do the electricity or do the drywall,” he says.

Walker, who is based in Kamloops, B.C., says that he’s offered limited-scope retainers to clients in the past, including one provincial court case where he was hired to do only the opening statement.

“I think there are opportunities for lawyers to not only make money but also to help some people who would not be able to afford legal services,” he says.

Lorne Sossin, Dean of the Osgoode Hall Law School, agrees that one of the biggest benefits of limited-scope retainers is the increase in the number of clients who are able to afford legal services.

“Simply put, limited scope retainers allow more clients to access more services from more lawyers and make informed choices about what services they need most and can afford,” explains Sossin. “Some clients, for example, may need the help most with developing legal arguments or obtaining advice while others may need the help most with making submissions.”

Jamie Maclaren, the Executive Director of Vancouver-based Access Pro Bono, agrees that the main benefit of limited-scope retainers for clients is their cost-effectiveness.

“If there is a piece of litigation where they can just hire a lawyer to take care of one piece, they are going to be well served by that,” he says. “They will also get the reassurance that comes with having a lawyer and knowing that they are on the right track.”

Transparency can also be a benefit of unbundled services, says Sossin.

“Limited-scope retainers also enhance transparency by clarifying the various steps in legal proceedings, what is involved in each stage, what expectations the client has for the lawyer's role, and the limits on that role,” he says, adding that the retainers usually also include fixed fees for services instead of billable hours.

“The main group which will benefit from limited-scope retainers, I think, are the middle class, where many have limited funds to devote to legal services,” adds Sossin.

However, Maclaren, an access to justice advocate who generally has a “very positive opinion” of limited-scope retainers, says that “unbundled services can be a good concept on paper and a little more difficult to put into practice.”
“It can be difficult to provide legal services starting in the middle of the litigation process because the lawyer has to get up to speed on everything that's happened on the file prior to their particular unbundled piece,” he explains. “Then, of course, closing off a file in the middle of litigation can also be difficult.” Liability is also a concern for many lawyers.
“Clients may still see a lawyer as responsible for all aspects of a case even though the retainer makes a more limited role clear,” says Sossin. “Can a lawyer say ‘no’ when asked for advice on other aspects?”

Walker and Sossin agree that the best way to avoid these problems is to ensure that both the lawyer and the client agree on the scope of the legal services.

“Clients must strictly understand why you’ve been hired,” says Walker. “In my reporting letter to the client, I set out exactly what I have done and what I’m not going to be doing and what he or she is going to do. That limits my liability and really identifies to the client what he or she expects.”

“Lawyers need to be proactive about designing clear retainer letters and discussing them up front and in very clear terms with clients,” Sossin adds. “This protects clients but even more so clarifies expectations of the lawyers. Courts have made clear time and time again that in the scenario of ambiguity or competing claims about a retainer, in the absence of a letter, the benefit of the doubt goes to the client.”

Due to these concerns, regulators in parts of Canada have developed guidelines regarding unbundled services. 
The Law Society of Upper Canada changed its rules in 2011 to provide guidance to lawyers regarding limited scope retainers.

“The changes have provided both legitimacy through express recognition of this option, and will facilitate greater experimentation with limited scope retainer models,” says Sossin, who adds that it is not yet apparent whether the rule changes have been “effective and sufficient.”

In 2013, the Law Society of British Columbia amended its Code of Professional Conduct to make it easier for lawyers to offer unbundled services by clarifying steps that might help them avoid potential liability or other issues. 
Maclaren says that he believes this “has been a very good development.”

“I think we in the legal sector who are concerned about access to justice had high hopes for the effects the changes would have in increasing access to justice and increasing access to legal services,” says Maclaren, who also serves as a Bencher on the Law Society of British Columbia.

However, he says that the effects have not yet been as “groundbreaking” as they might have hoped.

“Specifically in the area of family law, we had hoped more lawyers would use limited scope retainers to increase the affordable services available to people. That hasn't happened to the degree that we had hoped,” he says.

Maclaren remains optimistic about the use of limited retainers in the future.

“I think that the challenges can be overcome primarily through greater awareness, education and training around the appropriate use and effective use of limited scope retainers,” he adds.

Former journalist Carolynne Burkholder-James is an associate with Heather Sadler Jenkins LLP in Prince George, B.C., and a frequent contributor to CBA PracticeLink.