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40 Fam. Ct. Rev. 19 (2002)
DISCRETE TASK REPRESENTATION, ETHICS, AND THE BIG PICTURE: Toward a New Jurisprudence

handle is hein.journals/fmlcr40 and id is 15 raw text is: DISCRETE TASK REPRESENTATION, ETHICS, AND THE BIG PICTURE Toward a New Jurisprudence Richard Zorza This paper discusses the long term implications of the unbundled legal services movement with particular focus on overcoming perceived ethical barriers to unbundling and on the possibility of laying a foundation for the cre- ation of a right to counsel in civil cases for those who cannot afford a lawyer. All too often, legal innovators who experiment with new ways of delivering services to improve access to services run up against opposition from within the profession. This oppo- sition, whatever its real motivation, is expressed in part in the claim that these innovations are unethical, that is, that they violate the formal rules governing legal practice. This article reviews the status of the asserted ethical concerns with respect to so-called discrete practice representation and associated changes in court practice. After offering pro- visional answers, the article suggests that the usual question Can we do this ethically? is the wrong question. Rather, we should be asking whether we can ethically refuse to follow a course that clients are requesting and that enhances access to justice. Put another way, the long-term question is how we can cooperate together to redefine roles and processes to bring about access to justice and just results for all. THE SHORT-TERM ETHICAL CONCERNS Discrete Task Practice and Consent The first concern is that clients-particularly low-income clients-are being forced against their will, or at least without full informed consent, to accept having their advocate do only a part of the work needed for their case and have to do the remainder of the work on their own. Because such clients can not afford traditional full representation, they effectively can be viewed as having no choice in the matter and are forced to accept whatever the advo- cate offers them. Discrete Task Practice and Do No Harm A similar but somewhat different concern is the fear that, regardless of consent, the client is accepting a form of representation that does more harm than good. This might be because the client is actually not able to perform those components of the task assigned to him or her, or it might be because the situation is actually much more complicated than realized and therefore requires tasks unknown to attorney and client when making the assignment of tasks.' Author's Note: This article was adaptedfrom a speech the author gave at the introductory plenary at the conference on unbundled representation held in Baltimore in October 2000. The author wishes to thank his copresenters For- rest Mosten and Robert Rhudy, executive director of the Maryland Legal Assistance Corporation. FAMILY COURT REVIEW, Vol. 40 No. 1, January 2002 19-26 @ 2002 Sage Publications 19

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