[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

cases. 3 Model Rule 6.2 reflects these developments by requiring lawyers to accept such
appointments unless the lawyers can present very weighty reasons to decline.
Although America has no overall shortage of lawyers, the access gap between rich and
poor continues to expand simply because access to lawyers is determined largely by market
forces. But in spite of innovative alternative funding approaches such as the Legal Services
Corporation, private funding from foundations, charitable gifts, and state Interest on
Lawyer Trust Accounts (IOLTA), dozens of well-executed empirical studies conducted over
the past two decades document that, even with the best voluntary pro bono programs and
creatively financed legal services offices, lawyers address far less than half the legal needs of
the poor. 4
Put simply, the law does not work for everyone. For those who lack resources, the rule
of law is replaced by markets, power, organizations, wealth, and politics. 5 Neglected legal
matters involve personal finances and consumer issues, housing and real property matters,
domestic disputes, and employment-related problems. 6 Those who must seek a court
intervention often appear pro se. This lack of legal counsel is rendered more tragic when
one is reminded of what every law student and lawyer knows: those able to obtain a lawyer
get significantly better results. 7
Control, Communication, and Competence Lawyers owe clients affirmative duties of
competence, control over the objectives of the representation, and communication,
regardless of their ability to pay. Several of these fiduciary obligations take on special
significance in providing legal services to persons of limited means.
To provide more clients with legal services, some lawyers are experimenting with
unbundling legal services, delivering legal services à la carte rather than assuming fullservice
representations. 8 They might, for example, help a pro se litigant with a discrete task,
such as preparation of pleadings or a trial court brief, or assist a person in drafting a letter or
document. Model Rule 1.2(c) recognizes the ability of client and lawyer to agree to these
limited scope representations, but only if the limitation is reasonable and the client gives
informed consent. 9
Unbundling challenges three aspects of fiduciary duty: competence, control, and
communication. First, the lawyer’s duty of competence must be fulfilled in a unique
manner. Second, unbundling assumes that clients will assume control over aspects of a
matter typically undertaken by lawyers. Third, it therefore imposes special communication
obligations on lawyers so that clients can understand the client’s expanded role. In short,
lawyers must provide competent representation with respect to those items the client cedes
to the lawyer and adequate advice to the client about how to accomplish the rest. 10
Indeed, the success of unbundling depends on a competent lawyer who is able to
identify all aspects of the matter, clarify that handling less than all aspects is reasonable, and
communicate “adequate information” about the risks and alternatives to unbundled service
to obtain the client’s “informed consent.”
Some lawyers asked to provide certain pro bono services express concerns about their
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