Presentation by Richard Granat and Marc Lauritsen to Legal Services Corporation annual conference on legal technology. Topic is how UPL rules apply to legal selfhelp software.

1. Self-Help Systems
and
Unauthorized Practice
Richard Granat
Marc Lauritsen
TIG Conference
January 2013
Jacksonville, Florida

2. 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

3. 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

4. Online forms
Document preparation services

5. Online automated forms

6. Online services with lawyers in the loop

7. Traditional
service
Co-production
Self help

16. 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, …)

17. 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)

18. 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

19. 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

20. 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

21. 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).”
http://www.scbar.org/public_services/unauthorized_practice_of_law/

22. 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

23. 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.‟

24. Should software be treated like books?
But …
• Software is • Can be contextualized
essentially just a to specific
text being followed circumstances
by a machine • Can feel like you
• Incapable of interacting with a
“judgment” person
• Gives same results (avatars, audio, video)
to all comers • Might be described as
• Mutual anonymity an „expert system‟

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

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

27. Bidirectional
communication

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

31. 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

32. 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

33. 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.

34. 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

35. 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)

36. 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

37. Questions and Comments