the unbundled weblogger


Each of the items that I had planned to mention today has a connection to both unbundling and weblogging — the first stems from an article on employees with weblogs, the other is part of shlep‘s own recruitment campaign: 

black check The New York Law Journal/ has an article today titled “Don’t Get Bogged Down by Employee Blogging” (Sept. 29, 2006). The piece covers the well-worn territory of employer reaction to weblogs written by their employees about worklife. Other weblogs will surely cover any new legal wrinkles discussed there. I was interested to see that Bynog v. SL Green Realty Corp., No. 05 Civ. 0305 WHP, 2005 WL 3497821 at *1 (S.D.N.Y. Dec. 22, 2005), the case that got the most space in the article, has a pro se plaintiff, so I looked a little further.

According to the NYLJ article, “So far only a handful of courts nationwide have addressed an employer’s right to limit a blogger’s communications via a blog. One such case involved a concierge at a Park Avenue building who alleged that her employers terminated her in August 2004 in retaliation for her complaints about derogatory comments made to her about her race and gender. She publicized her allegations by maintaining a Web site [The Green Girl], including a blog [Service Industry Whistleblower Blog], a timeline of events and comments from tenants in the building. She also filed a pro se lawsuit in the U.S. District Court for the Southern District of New York asserting discrimination, retaliation and labor law claims against her employers and her union.” The defendants made counterclaims, and sought a preliminary injuction against the former concierge’s “malicious campaign to damage their professional reputations.” Judge William H. Pauley III denied the motion for the preliminary injunction, finding no extraordinary circumstances, and concluding that it would constitute a prior restraint by the court on speech, triggering First Amendment protections. In assessing the merits of the motion, Judge Pauley noted:

“As a pro se plaintiff, this Court affords Bynog the deference she is due and reads her submissions liberally and interprets them “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998).”

Experts on issues surrounding preliminary relief are welcome to let us know if the court is actually pampering Ms. Bynog and giving her special treatment as a pro se litigant, or whether its “liberal” reading of her submissions is in fact the customary standard in cases seeking injunctions and similar relief. I was interested to see that although she is called pro se, Ms. Bynog had apparently used an attorney (Michael Faillace), to draft her Jan. 2005 complaint and then chose to handle the preliminary relief motion pro se. If she did, this is a good example of the “unbundling” of legal sevices — also known as “discrete task lawyering” and “limited scope representation.” Lawyer Faillacci seems to have brought together Ms. Bynog’s facts and claims and drafted a coherent complaint that got the lawsuit rolling, and Ms. Bynog has handled a portion of the case that she could competently managed on her own. This is a strategy that can often work well, when a claimant wants to be actively involved in bringing a suit, where the issues are legally complicated and a layman could use a lawyer’s guidance (especially in drafting important documents and outling the various causes of action), and when the lawyer might not be willing to take a case on a contingency basis, but can instead be hired on an hourly or flat fee basis to handle discrete check The Unbundling Weblogger: Expanding the supply of, and demand for, unbundled legal services is an important part of the self-help law movement. There are many consumers who simply do not want to “go it all alone” when they are faced with important legal issues. Others want to play an active part, but need information and guidance from a lawyer to get them started, especially in complicated matters. Unbundled services — lawyers doing specific tasks (such as giving advice, limited document creation, review of pleadings, or coaching prior to court) rather than handling an entire case for a client — can allow the consumer/client to have the advantages of active engagement (including lower overall cost) and the confidence and competence that comes with working with a trained expert in the law. Unbundling can also allow the private bar to better meet the often-unserved legal needs of non-indigent Americans.

Much has been done over the past decade to make unbundling more widely accepted within the bar, but there is still much to do to make sure there are no ethical roadblocks, and to help lawyers overcome the practical issues raised by limited-scope representation — such as providing training, and best practices forms. (States are taking many different approaches, as ethicalEsq has noted.) Also, the public needs to be better-informed about the existence and potential advantages of unbundling. The following materials contain useful information relating to the ethics and practice of unbundling: the American Bar Association’s 155-page Handbook on Limited Scope Representation; the California Bar’s 10-page Ethics Primer on Limited Scope Representation; the comprehensive Unbundled Law Website.

HelpWanted In short, unbundling is an important, multi-faceted and interesting topic. And, we at shlep would very much like to add a team member who will focus on the issues surrounding unbundling and limited-scope representation. The well-known experts in this area (e.g., M. Sue Talia, Forrest S. [Woody] Mosten, Richard S. Granat, Will Hornsby, or Ayn Crawley) would make great shlep teammates, but are all pretty busy. So, we’re sending out this general notice of our talent search for The Unbundling Weblogger. As Denise Howell said a few days ago, noting shlep‘s search for contributors:

“This would be a great project for anyone interested in demystifying the legal system, participatory law, and/or getting their feet wet in blogging in a structured/team effort/good cause sort of way. I bet if you’re a law student there would even be a way to get credit for it.”

Even if you are not quite an unbundling expert yet, if you’re willing and able to learn about limited-scope representation and stay abreast of developments in the unbundling arena (e.g., rules changes, studies, experimental programs, etc.), please think about joining the shlep team. A weekly posting (or more) would be expected. Contact David Giacalone at “shlep AT localnet dot com” [no spaces in the address].

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