Could 'unbundling' help prevent the access to justice gap widening?

As legal aid withers and advice deserts yawn, could ‘unbundling’ help prevent the access to justice gap widening even further? The SRA would like to think so. Especially as engaging a lawyer will otherwise be beyond the reach of millions more citizens when – as the Bank of England predicts – we endure the longest recession since records began. Law firms facing a fall in demand could also benefit in the pocket, of course.

‘Unbundling’ is generally understood to mean offering pay-as-you-go services to clients under a limited retainer. At this week’s COLPs and COFAs conference, delegates were updated on a family law pilot launched by the SRA a year ago to study the potential benefits.

The outcome has been broadly positive, Jackie Griffiths, head of regulatory policy, told a panel session on the changing legal market. Early evaluation indicates that feedback from clients is no less favourable than for full representation. Clients also felt ‘in control’ of their matter, while a ‘significant proportion’ would not have been able to access regulated legal services without the option.

One fan is Jenny Warriner, director of Reading and Oxford firm Family First Solicitors and a participant in the pilot. Some 35% of her firm’s work is now supplied on a ‘pay-as-you-go’ basis.

‘[Unbundling] is not suitable for newly qualifieds,’ Warriner stressed. ‘You need a few miles on the clock. But cashflow is where it has delivered.’

Many solicitors are experimenting with unbundling, but just as many remain sceptical. The prospect of being found negligent for things the solicitor believed fell outside the retainer is a major deterrent.

And not only a deterrent to solicitors. One delegate, from a law firm with a string of offices in the south of England, told the conference their indemnity insurer had flatly refused to countenance unbundling. Too risky.

The outcome of the pilot could help to reassure PII insurers. Any levers the SRA can pull will be useful. But even if unbundling only means higher PII premiums, rather than outright proscription, it looks unlikely to prove any sort of panacea.

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