Barriers to unbundled legal services in Australia: canvassing reforms to better manage self-represented litigants in courts and in practice

Abstract

Self-represented parties are a common phenomenon in modern litigation. They bring with them multiple challenges that impact on the quality of justice that they, as well as other parties, obtain. They have substantial impact on court management, and potentially on judicial impartiality. The provision of unbundled legal services, where the lawyer provides limited legal support for parts of the case, is one proposed solution to these impacts. The US, UK, and Canada have all introduced detailed procedures that enable lawyers to provide flexible legal services for self-represented litigants (SRLs). Recognising the considerable risks arising out of limited services, these procedures focus on client care, quality of service, and risk management. This article examines the challenge of SRLs, and the policy initiatives that have been addressed in other international jurisdictions. It then considers the developing case law on professional liability in Australia. It concludes that neither case law nor professional standards regimes stand in the way of formalising the provision of unbundled services in Australia, leading to long overdue reform.