Self Help Legal Software and Unauthorized Practice of Law

Self-Help Systemsand

Unauthorized Practice

Richard GranatMarc Lauritsen

TIG ConferenceJanuary 2013

Jacksonville, Florida

What and why

• Online services that gather information, give information, and generate documents

• Used by self-helpers, clients, advocates, and court personnel

• Benefits– Dissemination of knowledge and

assistance– Efficient production of routine work– Better document results, more informed

litigants

Today’s focus

• Ethical and regulatory considerations bearing on delivery of online document assembly services outside of intended lawyer-client relationships

• How to manage the risks and benefits

Document preparation services

Online forms

Online automated forms

Online services with lawyers in the loop

Traditionalservice

Co-production

Self help

Potential problems

• Provider is charged with unauthorized practice

• Lawyer participants are charged with unethically assisting unauthorized practice

OR

• An unintended lawyer/client relationship arises, with duties that aren’t or can’t be met

AND/OR

• An aggrieved user sues (malpractice, general negligence, consumer protection, …)

Preliminary points

• Key question: what is the practice of law?

• This is an evolving area, with lots of murky aspects. Few bright lines.

• Great variation by jurisdiction• Competing values and policy

perspectives (e.g. consumer protection cuts several ways)

Legal information vs. advice

• Usually improper to give advice outside an attorney/client relationship

• Where does interactive software fit? Can a machine give ‘advice’?

Information General advice Assistance Specific

adviceRepresentat

ion

Issues if the service is found to be (legitimate) law practice

• Confidentiality• Conflicts of Interest• Duty to inquire• Candor toward the tribunal• Clarity on scope of representation• Duties to prospective clients• Communication with opposing

counsel and unrepresented parties

Unauthorized practice

• Dacey, Parsons, Reynoso• Texas UPL statute exception• Form selection and document

preparation• Does it make any difference if you

are a nonprofit? If the service is free?

• 1st amendment – speech vs. action• FTC, Dept of Justice

http://www.scbar.org/public_services/unauthorized_practice_of_law/

Example: “What is considered the "practice of law"?The practice of law is more than just appearing in court on behalf of a client. Though no concise definition of practice of law exists, certain characteristics make it more likely that the Court will view certain conduct as the practice of law. An early South Carolina case, cited by other jurisdictions as well, stated that the practice of law includes "the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Duncan, 65 S.E. 210 (S.C. 1909). The practice of law "extends to activities in other fields which entail specialized legal knowledge." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987).

Additionally, whether an individual is paid for his or her services is irrelevant. The reasons for prohibiting the unauthorized practice of law are not to protect licensed attorneys from losing business to unlicensed individuals. Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).”

It is the opinion of the Pennsylvania Bar Association Unauthorized Practice of Law Committee that the offering or providing [in Pennsylvania] of legal document preparation services as described herein (beyond the supply of preprinted forms selected by the consumer not the legal document preparation service), either online or at a site in Pennsylvania is the unauthorized practice of law and thus prohibited, unless such services are provided by a person who is duly licensed to practice law in Pennsylvania retained directly for the subject of the legal services.Pennsylvania Bar Association Unauthorized Practice of Law

Committee, Formal Opinion 2010-01, March 2010

Texas exception

‘In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.’

Should software be treated like books?

• Software is essentially just a text being followed by a machine

• Incapable of “judgment”

• Gives same results to all comers

• Mutual anonymity

But …• Can be

contextualized to specific circumstances

• Can feel like you interacting with a person (avatars, audio, video)

• Might be described as an ‘expert system’

Author, advisers, publisher, book store

personnel, …

Law is not being practiced

here

Sponsoring programs, substantive experts, technical developers, funders, service

providers

Is law being practiced

here?

Bidirectionalcommunication

Advice

<= Information Content Guidance =>

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Tw

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“Live”

Facts Opinions

Conversation

Expertise

Publication

Self help systems ?

Unauthorized practice

Law practice (counsel, representation)

“Pre-recorded”

Books, pamphlets

Books, pamphlets

Legit doc prep services

Interpersonal

Impersonal

Important safeguards

• Ensure quality control – testing, updating

• Follow ABA best practices• Include qualifying questions and

disclaimers• Provide well-crafted terms of service

and privacy policies• Collaborate with the courts• Talk with bar regulators, UPL

authorities• Talk with malpractice insurer

How to make clear to people that they are not in a lawyer-client

relationship

• It comes down to “reasonable belief”

• Disclaimers– Up front– In interviews – In documents/instructions

• Get an affirmative acknowledgment

Risks we should be most concerned about

• People being hurt by– misunderstandings about the service;– inaccurate or incomplete information.

• People not being helped – out of exaggerated fears of

impropriety or liability;– by giving in to unreasonable

restraints on service delivery.

If your regulatory environment seems an unreasonable obstacle

• Encourage re-interpretation

• Seek changes in the rules

• Challenge on constitutional or federal preemption grounds

• Consider limited services models

Resources• ED105 - Technology Ethics and Pitfalls in

Online Legal Services (2005) - http://lsntap.org/ed105

• http://www.abanet.org/cpr/model-def/model_def_statutes.pdf

• ABA standards for provision of civil legal aid – http://www.abanet.org/legalservices/sclaid/

• ABA best practices for legal information websites - http://www.elawyering.org/tools/practices.shtml

• http://www.selfhelpsupport.org/library/folder.100606-Court_Rules_Standards

• Scriveners In Cyberspace: Online Document Preparation and the Unauthorized Practice Of Law, Catherine J. Lanctot (2002)

Recap

• Online document assembly services can be delivered in legal and ethical ways

• The risks are manageable• Make it your business to know local

laws and rules• Talk with relevant authorities• Try to improve the regulatory

environment if it seems unreasonable

Questions and Comments