Last month’s post, Legal Services and the Unauthorized Practice of Law: No Bright Line Here, discussed the questions raised by the Missouri class action case against LegalZoom, alleging that under Missouri law, the online legal document service is engaging in the unauthorized practice of law (UPL). Lawyers, bloggers and writers are watching the case closely, hailing the trial’s pending outcome as the first sign of how UPL will be treated in the ever-graying area where technology is pushing law practice beyond traditional limits.
A quick read of the recently-published order by the Missouri District Court on both plaintiff and defendant’s summary judgment motions, however, surprisingly reveals that their UPL analysis, as a matter of law, is unrelated to LegalZoom’s manner of delivering legal documents. Simply put, technology has nothing to do with it.
How can that be? The case addresses the conduct of an online business selling legal documents. Well, let’s take a look. (Note: although there are a variety of other issues raised by both Plaintiff and Defendant in these motions, I will address only those that relate directly to this discussion.)
LegalZoom’s summary judgment motion requested that the court find that it is not engaged in UPL in Missouri as a matter of law. They argue this point by aligning themselves with a myriad of self-help legal products that include forms to be completed by the consumer to achieve a particular result (i.e., create a will or a corporation).
In general, self-help legal publishers have not been included in the definition of “practicing law” and are distinguished from legal document assistants, where the consumer receives assistance in preparing documentation. This is where the significant distinctions become important.
From the outset, the court runs with the distinction between the two types of services LegalZoom offers:
First, LegalZoom’s website offers blank legal forms that customers may download, print, and fill in themselves.… In addition to such blank forms, LegalZoom’s website also offers an internet portal, which is the subject of this dispute.
And it identifies LegalZoom’s advertising that confirms its participation in producing the final documents (i.e., “Just answer a few simple online questions and LegalZoom takes over. You get a quality legal document filed for you by real helpful people.”)
The court confirms that there is no issue with respect to the blank legal forms you can obtain through the site. (In fact, Plaintiff has not included that segment of LegalZoom’s business in its pleadings and motion.) The second service offered by LegalZoom, however, presents conduct of concern to the court in its analysis. Noting that Missouri’s definition of the practice of law includes the drafting of documents that affect legal rights in exchange for payment, the court denied the defendant’s motion on that point. As a result, whether or not the participation of their employees in creating, filing and delivering these documents constitutes the practice of law remains a question of fact under Missouri law.
This reasoning is the exact point made by Rich Granat and discussed in my previous post. The Missouri Court has given validity to this line of analysis, and it will become included in any discussion on UPL and the legal services industry.
But more importantly, the value of this opinion lies in its express finding that the manner of delivery of the documents, whether it be via mail or a computer, has no bearing on the matter. The court says:
That Defendant’s legal document service is delivered though the intemet is not the problem. The intemet is merely a medium, and LegalZoom’s sale of blank forms over the intemet does not constitute the unauthorized practice of law. Nor would LegalZoom be engaging in the unauthorized practice of law if it sold general instructions to accompany those blank forms over the Internet (as may already be the case).
LegalZoom’s legal document preparation service goes beyond self-help because of the role played by its human employees, not because of the inteinet medium LegalZoom employees intervene at numerous stages of the so-called “self-help services.”
Whether the customer interacts with the service in person, on the phone or via software “does not changes the essence of the transaction.”
This is an important finding because it confirms that existing regulations of lawyer conduct may well be sufficient to address regulatory issues related to the use of technology. Additional regulations are not necessarily needed just because lawyers have increased their use of technology. Approaching these matters with that mindset will go a long way to easing our way through them.