people who need attorneys can not afford them. The State Bar cannot
fix this problem, but it could make a significant contribution by
promoting opportunities for attorneys to provide discrete task legal
services. Under the doctrine of discrete task attorney services, an
attorney takes on only a slice of a legal problem for the client -
for example, helping the client fill out a form -
without taking on the full representation of the client.
Discrete task legal services offer one way to provide citizens with
lower cost help than they can receive from attorneys if attorneys are
required to take on the entirety of a legal problem.
Under the current state of the law, there are a
number of rules that discourage discrete task practice - barriers
which drive up the cost of helping people have access to some
professional help. The State Bar should take up the task of
eliminating these barriers.
Most of our citizens, where they could (and often
should) use an attorney, elect a cheaper alternative. The largest
financial commitment that most people make, a commitment that is
fraught with legal perils, is the acquisition of their home. In
California, these transactions are handled by real estate agents and
usually take place without any legal advice.
Most people rely on tax preparers to help them
interpret their obligation to pay taxes. Many people turn to legal
assistants or notarios for help with immigration, landlord-tenant
problems and the like. For many people, their only contact with the
justice system is when they are in custody or divorce proceedings. In
more than 60 percent of custody cases, neither side has an attorney; in some 85
percent of these cases, one party does not have counsel. In divorce
matters, more than 50 percent of the time, one side is unrepresented.
law is a barrier to discrete task legal services
There are a number of barriers that prevent
attorneys from taking on discrete task representations. One of them is
the rule that, even if the attorney has undertaken to provide
assistance on a discrete part of a problem, the attorney has a duty to
advise the client about risks that exist outside of the area of the
Thus, in Nichols v. Keller, 15 CA4th 1672 (1993),
an attorney who was retained to prosecute a workers' compensation
claim was held to have a duty to advise the client about possible
third-party claims. Another barrier to some forms of discrete task
attorney representations is the application of the general rules of
Conflict rules make it difficult or impossible
for an attorney to operate in a court-supervised setting, such as a
self-help kiosk located in a courthouse, where it may be that parties
with conflicting interests seek help in filling out court papers. Yet
another barrier to discrete task practice is the characterizing of
some help to pro se litigants as forbidden "ghost writing."
With respect to these three barriers, it may be
possible to satisfy the policy goals underlying existing law and still
allow attorneys to provide discrete task representation. For example,
the legislature could create a disclosure form, much like the one used
in the context of a real estate transaction, which would provide
disclosures about the limits of the representation.
Then, the law could provide that the attorney use
of this disclosure form during the course of a discrete task
representation would create a safe harbor for the attorney, preventing
the client from later charging that the attorney had duties beyond
those specified in the disclosure form. Similarly, the conflict rules
could be amended by statute to provide that, when an attorney is
acting at a court-supervised legal aid center, assuming there have
been proper disclosures to the client, the normal rules of conflicts
would not apply. Finally, again with proper disclosure to all
concerned, including the court, we could adopt rules that would allow
attorneys to provide limited help to pro per litigants, without
becoming counsel of record.
Bar can lead the way toward discrete task legal services.
The State Bar's primary missions are admissions
and discipline. The State Bar should keep its focus on these important
tasks. However, the State Bar is also a unified bar with a duty to
lobby on behalf of the profession for improvements in the
administration of justice.
The State Bar is in the best position to provide
leadership in the area of discrete task representation. It has the
staff and experience to identify the barriers to this process and the
ability to lead the way to eliminating these barriers. The effect of
such leadership would be to make it more affordable for citizens to
have access to professional help, provide work for attorneys and
strengthen the rule of law.