The saga of Widener School of Law faculty member Lawrence J. Connell has taken another turn, prompting the age old question, “What is truth?” Professor Connell has been suspended by the University for a year without pay for allegedly retaliating…
Posts Tagged ‘Law’
Is Legal Software Conduct? True or False?
09
Aug
On August 2, 2011, Federal District Judge Nanette K. Laughrey, for the Western District of Missouri, the Judge presiding over the class action case against LegalZoom for unauthorized practice of law, released an opinion denying, in part, Defendant’s Motion of Summary Judgment. The Court held that document preparation by non-lawyers, under Missouri Law, is conduct, and not entitled to First Amendment protection. ( See full opinion here ).
This is consistent with my own view, expressed in a previous post. (Is LegalZoom just a self help legal software company?).
The court’s opinion rejects the logic in an article authored by Professor Catherine J. Lanctot, titled, "Does LegalZoom Have First Amendment Rights: Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law." , which doesn’t surprise me, as it is hard to characterize LegalZoom’s activities as "speech", when they have 500 employees working on customer’s documents.
One paragraph in the Court’s opinion is troubling. On Page 21, the Opinion states as follows:
"Furthermore, LegalZoom’s branching computer program is created by a LegalZoom employee using Missouri law. It is that human input that creates the legal document. A computer sitting at a desk in California cannot prepare a legal document without a human programming it to fill in the document using legal principles derived from Missouri law that are selected for the customer based on the information provided by the customer. There is little or no difference between this and a lawyer in Missouri asking a client a series of questions and then preparing a legal document based on the answers provided and applicable Missouri law. That the Missouri lawyer may also give legal advice does not undermine the analogy because legal advice and document preparation are two different ways in which a person engages in the practice of law. "
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"The Missouri Supreme Court cases which specifically address the issue of document preparation, First Escrow, Mid-America and Eisel, make it clear that this is the unauthorized practice of law. The fact that the customer communicates via computer rather than face to face or that the document prepared using a computer program rather than a pen and paper does not change the essence of the transaction."
This Opinion could be interpreted to mean that all legal software programs are a form of conduct, and not entitled to First Amendment protection. I would argue that the Court comes to this conclusion because the legal software is used in the context of a document preparation service, and is not a stand alone program. As the Court further explains that:
As in Hulse, First Escrow, Mid-America, and Eisel, LegalZoom’s customers are rendered passive bystanders after providing the information necessary to complete the form. Yet LegalZoom charges a fee for its legal document preparation service. …..The customer merely provides information and "Legal takes over."
The facts of this case make a difference, I would argue, in understanding the scope of the Court’s Opinion.
If we define a legal software program as a "product", where there is no service element and no conduct whatever, then it is hard for me to believe that the Court intended to ban legal software programs from distribution directly to consumers, whether on-line or off-line.
If that was the Court’s intent, then companies like Nolo and Intuit, would have to pull their products off the shelves of Barnes & Noble and Staples and Amazon, programs like LawHelp Interactive, supported by the US Legal Services Corporation, would have to be terminated, and the many web sites that offer interactive forms, without any service component would have to be abandoned. Courts that are experimenting with distributing interactive forms from their web sites, would have to consider whether this activity is the "unauthorized practice of law", a strange result.
Law Schools like Chicago-Kent Law School that are experimenting with new legal software interfaces that connect citizens directly with legal help through software, might reconsider their efforts.
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The only way that such legal software could be used, would be by attorneys in the context of delivering of legal service through their law firms. I think this would be an unfortunate result.
Other possible negative consequences of such an interpretation would be:
- The legal profession would be further attacked for attempts to restrict commerce and maintain higher legal pricing by the consuming public causing further damage to the profession’s already declining reputation;
- Pro se litigants would not have access to tools that enable them to represent themselves, further restricting access to the legal system;
It would be helpful, if the Missouri District Court clarified its language on page 21 of the Court Order to distinguish between fact situations where interactive legal software is used as part of a document preparation service business and situations where the programs are distributed as stand alone programs — products– like a book or other publication. What do you think?
Providing Routine Legal Services to the "Masses" in the 21st Century, Part One: Internet-Based Legal Document Prep Services
09
Aug
Does LegalZoom’s business practices violate Missouri law which bars non-lawyers from preparing legal documents? Been wondering when we would see this issue presented in court. Now that Missouri federal judge Nanette K. Laughrey has set a trial date, August 22,…
A Little More on Drexel Law’s ABA Accreditation
09
Aug
Opened in the fall of 2006, the Earle Mack School of Law at Drexel recently received ABA accredition as Mark Giangrande posted on LLB earlier this week. Folks may recall that when plans for the law school were announced in…
Temp Lawyers Performing Document Review Subject of Malpractice Lawsuit
08
Aug
The WSJ’s Vanessa O’Connell reports: An increasingly contentious lawsuit by a former client against law firm McDermott Will & Emery LLP is putting a spotlight on the legal industry’s widespread use of itinerant “contract” attorneys who review documents for lower…
Just Trying to Survive: County Law Library Mission Statements Round-Up
05
Aug
Greg Lambert has compiled some 50 county law library mission statements. See his 3 Geeks post for details. While all are noble aspirational statements, I think the reality in this economy is that county law libraries are just trying to…
Opening: Director of the Law Library, University of Detroit Mercy
05
Aug
The University of Detroit Mercy School of Law invites applications for the position of Director of the Kresge Law Library. The Director is a member of the Law School tenure-track faculty and reports directly to the Dean of the Law…
Vault Law’s Best in Class Law Firm Rankings by Prestige: Associates Rank Top 100 Law Firms Generally and by Law Firm Practice Areas
03
Aug
Vault Law’s annual survey of law firm assocates ranks law firms by associates’ perception of firm prestige. Some 16,000 associates participated this year. For details, see Vault Law’s 2012 Top 100 Law Firms. To determine the 2012 Vault Practice Area…
NALP on ABA Job Reporting: Not So Fast There Buddy
02
Aug
There is at least one or more angles to the ABA upping its law school data placement information I’d like to mention. See Joe’s post from earlier today, ABA Revises Law School Placement Data Reporting Requirements. The first is that…
