1. Ethical and Regulatory Aspects of Online Document Assembly Services
Richard Granat
Will Hornsby
Marc Lauritsen
Monthly Developer Call for the LawHelp Interactive Community
Organized by Pro Bono Net
September 29, 2010

2. Panelists Richard Granat – DirectLaw and MyLawyer.com
William Hornsby – staff counsel, American Bar Association Division for Legal Services
Marc Lauritsen – Capstone Practice Systems (moderator)

3. 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

4. Traditional
service
Co-production
Self help

5. Today’s focus
Ethical and regulatory considerations bearing on delivery of online document assembly services outside of lawyer-client relationships
Also touching on
Use of such services within lawyer-client relationships, such as unbundled and assisted pro se scenarios
Risk/benefit management more generally

14. Potential problems (from the provider’s perspective)
Service is claimed to be unauthorized practice
Lawyer participants are claimed to be unethically assisting unauthorized practice
An unintended lawyer/client relationship arises, with duties that aren’t or can’t be met
An aggrieved user sues (malpractice, general negligence, consumer protection, …)

15. 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)

16. 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 advice
Representation

17. Issues if the service provider is practicing law
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

18. 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

19. Example: “What is considered the "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).”

20. 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.’

21. Document preparation services
Online forms
Document preparation services

22. Online automated forms

23. Online services with lawyers in the loop

24. Should software be treated like books?
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’
Software is essentially just a text being followed by a machine
Incapable of “judgment”
Gives same results to all comers
Mutual anonymity

25. Law is not being practiced here
Author, advisers, publisher, book store personnel, …
Law is not being practiced here

26. Is law being practiced here?
Sponsoring programs, substantive experts, technical developers, funders, service providers
Is law being practiced here?

27. Bidirectional
communication

28. Facts Opinions Advice Conversation Expertise Publication
Law practice (counsel, representation)
Facts
Opinions
Unauthorized practice
Advice
Conversation
Interpersonal
“Live”
Legit doc prep services
Expertise
<= One-way Human communication Two-way =>
Self help systems ?
Impersonal
“Pre-recorded”
Publication
Books, pamphlets
Books, pamphlets
<= Information Content Guidance =>

29. 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

30. 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

31. 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.

32. 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

33. Resources
ED105 - Technology Ethics and Pitfalls in Online Legal Services (2005) -
ABA standards for provision of civil legal aid –
ABA best practices for legal information websites -
Scriveners In Cyberspace: Online Document Preparation and the Unauthorized Practice Of Law, Catherine J. Lanctot (2002)

34. 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

35. Questions and Comments