Hybrid instructions (Unbundling) - pay as you go instructions and litigation?
As the legal market continues to adapt to the new world, clients are also evolving and want to make their money go further. This has seen a rise in Hybrid instructions i.e. unbundling.
A little known fact is that in some circumstances solicitors no longer need to be on record. The Law Society recognises that solicitors may act for a client on a limited retainer (‘unbundling’). This service is often offered so that the lay client can save money.
It is likely that in most cases where counsel is instructed by a solicitor who is not on the record, the reason for this an unbundled service is being provided . There is nothing which prohibits the offering, as part of the unbundled package, an agreement to instruct counsel on the client’s behalf. A very good reason why a lay client would want to use the knowledge and experience of a solicitor to select suitable counsel and ensure s/he is properly briefed.
The Law Society’s guidance makes it clear that there is nothing to stop a solicitor on an unbundled retainer.
‘The essence of unbundling in its purest form is that the case remains client-led so the solicitor does not necessarily accept service of documents, does not send out correspondence in the firm's name or otherwise communicate with third parties, does not incur disbursements and does not go on the court record.’
This seems to acknowledge, correctly, that there is nothing prohibiting such a solicitor instructing counsel to represent a lay client at court. In fact the guidance says that when providing an unbundled service the solicitor should not go on the court record and gives pointers as to the type of case which may and may not be suitable for unbundling.
But what about the BSB ?
A barrister can provide reserved legal activities (including advocacy at court) if they are instructed by a professional client……... There is nothing in the BSB Handbook or the Legal Services Act which requires that the person instructing the barrister to attend court must have conduct of the litigation. Therefore, absent any special factors which might require counsel to refuse the instruction, unbundling seems to be a perfectly acceptable way forward in some circumstances.
And the Money ?
Even though you may not be on record I’m afraid , still the best protocol is ‘ monies on account’ for any disbursements i/.e fees.