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Self-Help Systems
        and
Unauthorized Practice

      Richard Granat
      Marc Lauritsen

        TIG Conference
         January 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
Online forms




Document preparation services
Online automated forms
Online services with lawyers in the loop
Traditional
  service




              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 advice   Representation
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
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/
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?

                          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‟
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?
Bidirectional
communication
<= 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 =>
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

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Self Help Legal Software and Unauthorized Practice of Law

  • 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
  • 6. Online services with lawyers in the loop
  • 7. Traditional service Co-production Self help
  • 8.
  • 9.
  • 10.
  • 11.
  • 12.
  • 13.
  • 14.
  • 15.
  • 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?
  • 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 =>
  • 29.
  • 30.
  • 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