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Posts Tagged ‘person’

Opening Legal Reference Librarian, Holland & Hart LLP

12 Jul

Holland & Hart LLP, a premier law firm that has gained a reputation of providing its clientele with the highest quality legal services, is seeking an exceptional person to provide legal and business research services to the firm’s attorneys. Job…

 

Is LegalZoom Just a Self-Help Legal Software Company?

04 Jul

In a Fortune Magazine blog post by Roger Parloff just last week, entitled Can Software Practice Law?, writing about the class action suit against LegalZoom in Missouri for violating Missouri’s UPL statute, Parloff argues that LegalZoom is no more than a self-help legal software company, and therefore entitled to the same protections as a self-help legal software publisher. The question of whether legal software constitutes the practice of law is a controversial one. When the Texas Bar won a suit against Nolo Press on the grounds that its WillMaker program constituted the practice of law, the Texas Legislature amended the UPL statute and further defined the practice of law  as follows:

Texas Code, 81.101 (c) 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. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

No other state has passed such an exemption, but there is a well-established line of cases that supports the position that the publication of information about the law, as well as self-help legal books, divorce forms with instructions, and do-it-yourself kits is not the practice of law and protected by the First Amendment of the U.S. Constitution and may be protected by state constitutions as well. See, e.g., New York County Lawyers’ Ass’n v. Dacey, 21 N.Y.2d 694, 234 N.E.2d 459 (N.Y. 1967), aff’ing on grounds in dissenting opinion, 283 N.Y.S.2d 984 (N.Y. App. 1967); Oregon State Bar v. Gilchrist, 538 P.2d 913 (Or. 1975); State Bar of Michigan v. Cramer, 249 N.W.2d 1 (Mich. 1976); The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla. 1978); People v. Landlords Professional Services, 215 Cal. App.3d 1599, 264 Cal. Rptr. 548 (Cal. 1989). 

LegalZoom takes the position that it is no more than a self-help legal publisher and seeks to fall within this classification, as Roger Parloff argues in his blog post. This is also the position that Legal Zoom takes on its Web site and in its answer to the Missouri Complaint:

From the LegalZoom Web site:

"Is LegalZoom engaged in the practice of law?"

"No.  LegalZoom is the latest and natural evolution of the centuries-old legal self-help industry."

"No jurisdiction prohibits the sale of software that generates a legal document based on a customer’s unique input.  LegalZoom has never been prohibited from operating in any state."

"Should consumers be concerned about LegalZoom losing this case?"

"No.  If LegalZoom is found to be engaged in the unauthorized practice of law in Missouri, then every guide and legal formbook in libraries and bookstores in the state would also be engaging in the unauthorized practice of law.  These days, nearly all such books are packaged with computer software that works in a similar manner to LegalZoom.  Just like with a Nolo Press® book or a preprinted form, LegalZoom customers have the ability to review and consider their legal form before committing to their purchase."

It is not possible to know how LegalZoom’s document technology actually works without further evidence. However, one can state with certainty that it doesn’t work like a true Web-enabled document automation technology which generates a document instantly from data entered into an on-line questionnaire that is presented through the Web browser.

Vendors of true Web-enabled document automation solutions, such as HotDocs, Exari, DealBuilder, WhichDraft and Rapidocs (our company) have document automation technologies that generate a document instantly after the user clicks on the submit button. Because LegalZoom’s technology seems to require a separate step that is executed off-line, it does not in my opinion, fit into the category of a Web-enabled document automation technology. [ For a more extensive discussion of Web-Enabled Document Automation as a Disruptive Technology, click here to download our white paper on the subject. ]

Instead, in the LegalZoom  business model, as described by LegalZoom, a data file is created, reviewed by a legal technician, and then imported into their – document assembly application utilizing some form of import mechanism. It is not clear whether the document is fully-assembled until this second step takes place, and it’s a distinction that makes a difference.

If LegalZoom were just a legal software company, it is hard to understand why it needs over 400 employees to provide services to its customers, other than the fact that these employees are conducting professional reviews and providing real service support. For these services, LegalZoom receives a substantially higher price than if they were just selling a self-help legal form. See for example on the LegalZoom Web site, the 30-point review of wills conducted by LegalZoom’s "professional legal document assistants."

These more labor intensive, personal services makes LegalZoom a "service business" and not just a "legal software publisher" entitled to the First Amendment protections that are afforded to publishers.

Andrea Riccio, a Canadian lawyer who has commented about this subject, responds to some of the arguments that LegalZoom makes in its defense:

LegalZoom’s argument: "Typically, there is no interaction between the customer and the person reviewing the file."

Riccio’s response:

“The mere fact that the employee is granted access to the customer’s response is an interaction between the employee and customer.”

LegalZoom’s argument: "If there is an inconsistency, it is NOT corrected by the employee – instead, it is brought to the attention of the customer." 

Riccio’s response:

“Whether it is the customer or the LegalZooM employee that physically changes the document is irrelevant. What is important is that it is the LegalZoom employee that has identified the inconsistency. That, in my opinion, goes beyond "self-help" and is an act of legal draftsmanship.”

LegalZoom’s argument: "no employee revises or corrects any portion of the customer’s self-created document." 

Riccio’s response:

“Identifying inconsistencies or errors in another person’s document is in my opinion an act of revision and correction. Who physically makes the changes is irrelevant.”


It is for these reasons that LegalZoom was required to be licensed under California law as a registered and bonded legal document assistant (see footer
LegalZoom Web site).

What is a Legal Document Assistant?

A "Legal Document Assistant", as defined by the California Business & Professions Code (Section 6400 (c)) is:

"Any person who is otherwise not exempted and who provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter, or who holds himself or herself out as someone who offers that service or has that authority, or a corporation, partnership, association, or other entity that employs or contracts with any person who is not otherwise exempted who, as part of his or her responsibilities, provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter or holds himself or herself out as someone who offers that service or has that authority."

This California statutory scheme is based on the idea that a non-lawyer can perform clerical support functions without violating the unauthorized practice of law statute in California. Only a few states have carved out this exception by statute (e.g., California, Florida, Arizona).  Missouri is not one of them.

Could LegalZoom operate in California, where it is headquartered, without being registered with the state as a Legal Document Assistant?  I think not.  

This is the category that LegalZoom fits into, not “self-help” software.

Otherwise, I suppose Nolo, a California-based self-help legal software publisher, and other California-based legal software publishers that sell directly to the public, would have to be licensed in California as Legal Document Assistants!!!  (See generally – http://en.wikipedia.org/wiki/Legal_document_assistant, for a more extensive discussion of what a Legal Document Assistant is, and is not.)

Just to be clear, I am personally in favor of both self-help legal software and paralegal-assisted document preparation services as a way of providing access to the legal system, and personally think there should be more choices for consumers.  But my personal opinions are not the issue.  The issue is: 

“What does the law in the different states now require, and what can we do to change it if we don’t like it?”

It is becoming clear that LegalZoom’s defense strategy in the Missouri case is to associate itself with “self-help software”.  I am sure that its well-financed publicity machine is already approaching bloggers and the business press to write stories about whether “legal software” should be prohibited or regulated, when the real issue is whether and under what conditions a legal document preparation service should be regulated, or immune from regulation.

Definitions of what is “legal self-help software”, and what is not, are critical for carving out safe harbors for innovation, particularly as legal software applications that are distributed over the Internet have potential for great impact and for providing access to the legal system for those who cannot afford full service legal representation.

For example, LawHelpInteractive, a non-profit pro bono support organization, with grants from the US Legal Service Corporation, has assisted in the creation of true Web-based document assembly Web sites in many states that provides free legal forms directly to consumers that can be assembled directly on-line. 

LawHelpInteractive has generated thousands of legal forms during the past few years that are instantly available and free to consumers throughout the United States. No one is arguing that these Web sites constitute the practice of law.

Because of the wider reach of the Internet, Web-enabled legal software applications are actually more of a threat to the legal profession, than desktop software, and the opportunity for over-regulation remains ever present. I would regret the day that courts prohibit the sale of self-help legal software because it is the unauthorized practice of law.

However, stronger arguments can be made for protecting from regulation the distribution of legal software applications, than there are for exempting from regulation a "service business", so I maintain that confusing one category with another is dangerous and takes us down a slippery slope.

Whether or not LegalZoom provides a valuable service; whether or not consumers have been harmed by LegalZoom; and whether or not the company provides some form of legal advice are questions of fact for the Missouri jury, and beyond the scope of this post.

The question for the U.S. District Court in Missouri is whether, as a matter of Missouri law, LegalZoom’s document preparation service business constitutes the practice of law in Missouri, under the terms of the Missouri UPL statute.

I think it does. What do you think?

 

 

So Much for 2011 Being a "More Boring Year:" CALI Has a New Director of Content Development

27 Jun

… and I can think of no better person for the gig. John Mayer announced at this year’s CALI Conference that Sarah Glassmayer has accepted the position of Director of Content Development. She will start her new job on August…

 
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Hein Turns the Table on the Anniversary Gift-Giving Tradition!

24 Jun

Normally landmark anniversaries means you give presents to the person(s) who achieved that milestone. Well, that not how the fine folks at William S. Hein & Co., Inc., see it. To mark the Company’s 50th anniversary, Hein is offering the…

 

Should I ask my friend for advice about my divorce?

04 Mar

Should I change my hair? What car should I buy? What movie should I go see this weekend? What gym should I join? What should I do about this issue I’m having at work?

We seek advice from our friends and family to learn how to approach a new situation. Our goal is to go from knowing “nothing” to knowing “something.” And who better to prepare us for this than a group of people we already know and trust?

I know I have a group of friends I lean on for advice. But there are some situations when one needs to evaluate if our friends are the appropriate and qualified source of information about important life issues that vary from person to person, based on their own experience.

Take divorce for example. 

Why should I be careful when seeking a friend’s advice about divorce?

Author Susan Pease Gadoua wrote a great article on this subject titled, Beware When Seeking A Friend’s Advice About Divorce, for the Huffington Post. She says that you shouldn’t learn about divorce from someone like a friend, family member, neighbor, or co-worker, and this group of people alone. They should not be your only source for learning about everything that can happen as you move through the often-confusing legal process.

Gadoua cites three main reasons to support her claim:

  1. You are learning about divorce through someone who may not fully understand what happened or why.
  2. Your friend/acquaintance may not tell you about special circumstances in his case that may have influenced a particular outcome.
  3. Everything about you and your case is different from anyone else’s case or circumstances.

Everyone reaches out to his or her network to seek advice and learn from the experiences of their peers. That’s okay. But your peers’ lives and situations are completely different from what you are going through right now.

For example, if you are reading this, you are considering or have already decided to represent yourself and are looking for ways to “do-it-yourself” and learn how to do it right. You know that you need help and are looking to team up with someone to get the help you need, when you need it.

How can I learn more about divorce, if not from my friends?

I’m not saying that you shouldn’t ask your friends for advice about what they went through with their divorce, but keep in mind that what they are telling you is different from your situation and there are details they may be omitting from the story that you’re unaware of.

So what can you do to learn more about the divorce and legal process? I recommend that you learn as much as you can, and books by accredited lawyers are a great resource. Here are a few to get you started:

Once you have educated yourself as much as you can, build the list of questions that those books have not answered and schedule an appointment with a professional who knows the intricacies of the law specific to the court system where you live.

We are here to help – you can sign up for the next free 30-minute Attorney Appointment, register for a Pro Se University Workshop, or look into other services that match what you’re looking for.

Just because you don’t know what you don’t know, doesn’t mean you have to go it alone.

 
 

How can I be an effective negotiator?

17 Feb

If you are not familiar or comfortable with negotiating, you may see it as an intimidating task that requires you to be aggressive or manipulative to get what you want. While it helps to be able to assert yourself, negotiations charged with negative energy will not be the most effective. Being prepared, maintaining a healthy mindset, listening and clearly communicating will be your keys to a successful outcome.

How to prepare for your meeting.

You’ll want to arrive at your meeting with a clear understanding of what you hope to get out of it. That means you’ll know not only what you hope to gain, but what you are willing to give up. Also, think about the needs and objections of the other party – “walk a mile in the other man’s shoes” so that you can respond quickly and appropriately. Make sure you can provide alternative solutions to the objections. It’s a good idea to create a file with all of your prep work to reference during your meeting.

It is also a good strategy to show up with drafts of all of the necessary paperwork to finalize your case. You can bring them on a laptop or thumb drive, or in hard copy form. If you reach an agreement at the mediation, you can fill out your drafts with your agreement. This work will put you that much closer to finishing your case and will be accurate because both sides will have participated in completing the documents. If you are not sure what paperwork you will need, we can help. Sign up for a free attorney appointment.

Get in the right frame of mind.

Walk into your negotiation with a positive mindset. Try to leave your emotions about the other person at home and approach the situation as you would a business meeting. Give each issue a reasonable amount of time to discuss and when you reach that time limit without significant progress, move on to the next issue. Setting and sticking to an agenda will set the tone that you are both there to resolve your legal issues. Keep focused on the outcome you want; don’t dwell on the past.

Listen carefully and communicate clearly.

During the meeting, listen carefully to the other party and don’t interrupt. Really seek to understand that person’s motivations because this will help you craft the best response. If the other person stakes out a position that you find unreasonable, ask, “Why is he or she taking this position? What is driving him or her to want this outcome?” Often, if you ask these clarifying questions before moving forward in the conversation, you can come up with a solution that addresses the underlying reason for the requested outcome that both parties can accept. When you request something, try your best to clearly communicate why you want this outcome. This will help you and the other person to come to reasonable accommodation on the disputed issues.

It is normal to feel anxious about negotiating. Just remember that a successful negotiation is one that results in both parties walking away feeling that their points of view were heard and the outcome was based on mutual understanding. In most cases, this means reaching a compromise.

 

Orientation Program for Pro Se Parties Required in King County

10 Feb

Effective January 1, 2011, the King County Superior Court passed an emergency rule that requires all self-represented parties to attend an Orientation Program.

The goal of the orientation is to effectively explain the court process to pro se parties in person instead of just handing out forms with instructions.

Attendance is mandatory and the rule is as follows:

LFLR 20. ORIENTATION PROGRAM IN FAMILY LAW MATTERS
Adopted on an Emergency Basis; effective January 1, 2011

(a) Description and Applicability. To assist self-represented parties involved in family law matters and improve the efficiency of the court, King County Superior Court Family Court shall conduct an Orientation Program for parties in all cases filed under Chapter 26.09 RCW, including dissolutions of marriage, legal separations and major parenting plan modifications.

(b) Mandatory Attendance. In all cases referred to in Section (a) above, all self-represented parties shall successfully complete the Orientation Program within thirty (30) days of filing or service of the summons and petition. Successful completion shall be evidenced by a certificate of attendance filed with the court by Family Court Operations staff. Any party attending the Orientation Program prior to obtaining a King County Superior Court cause number shall be responsible for filing his or her certificate of attendance in the court file when the cause number is obtained.

You can read details about the rule here, on the King County Superior Court website. The orientation will require a small fee that the pro se party is responsible for.

What does this rule mean for me, a pro se party?

We all know that the legal process can be confusing – which is why Pro Se University offers a number of workshops and services to help you navigate the process. So it’s a good sign that the King County Court is starting this program. What the orientation will look like in implementation is still to be seen.

The details about this program and how Family Court Services will notify pro se parties that file after January 1, 2011 are yet to be determined. If you are one of these people, you can contact Family Court Services for more information.

Related: LFLR 20. ORIENTATION PROGRAM IN FAMILY LAW MATTERS (http://www.kingcounty.gov/courts/Clerk/Rules/EmergencyLocalRules.aspx )