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The U.S. Army’s Fort Drum, in upstate New York, is home to about 13,000 soldiers and their families. Derek Distenfield is a soldier stationed at Fort Drum. After eleven years of service, Distenfield will be leaving the Army in September. Distenfield noticed that Fort Drum had a higher divorce rate than most military bases and decided that in his post-military career he would do something to help his fellow soldiers with divorce and other legal problems they face.

In 2012, Distenfield founded Legal Docs By Me, a legal document preparation service. The company uses non-lawyers to help people complete legal documents for matters such as uncontested divorces, wills, and incorporations. The company opened an office in Watertown, near Fort Drum, in May. It offers document preparation for divorce and several other services for a flat rate of $399.

Since most people can’t afford a lawyer at $200 to $300 per hour, the company helps fill a gap in access to justice for people with simple legal needs that don’t require the expertise of a lawyer. Without document preparation services, people who can’t afford to hire a lawyer are left to identify appropriate forms to create a legal document on their own. Books from companies like Nolo and online services such as LegalZoom have helped fill some of these unmet legal needs, but many people prefer to work with somebody face-to-face on these matters, as shown by the large number of satisfied customers visiting the recently-opened Watertown office.

However, businesses that give people access to the legal system without a lawyer are a threat to lawyers’ monopoly, and recently New York Attorney General Eric Schneiderman has been on a mission to shut down Legal Docs by Me. Schneiderman is claiming that the business engaged in the unauthorized practice of law (UPL), and he ran an undercover sting operation to try to find evidence that paralegals at the business were providing legal advice.

Running a sting operation shows the desperation of a prosecutor trying to generate evidence of a crime with no victims. If consumers were being harmed by the alleged UPL at Legal Docs by Me, then the attorney general would have no trouble producing testimony from the victimized consumers. Instead, customers continue to flock to the business, and not a single UPL “victim” has come forward.

Even if a paralegal at Legal Docs by Me accidentally crossed the blurry line between permissible help and practicing law, it’s a misuse of prosecutorial resources to try to shut down the company. Undoubtedly, at law firms across the state, paralegals have crossed this line on multiple occasions. However, the attorney general is not sending undercover investigators into Manhattan law firms to ferret out paralegals who accidentally step into the forbidden territory of legal advice. This is clearly a case of the state’s chief lawyer using his prosecutorial power to protect his professional brethren. The attorney general should focus his office’s resources on real crime rather than trying to shut down a business that is helping to bridge the access to justice gap.

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Please read this blog entry from Kat Mountjoy, a board member of the Alliance of Legal Document Assistant Professionals. ALDAP is one of the membership groups supporting California legal document assistants by promoting professional responsibility within the profession and generating awareness of the profession among the public.

Kat operates two businesses, an LDA business, which is regulated under California's LDA statute, and a bankruptcy petition preparation business, which is regulated under federal bankruptcy law. A federal bankruptcy trustee took Kat to court because she uses the word "legal" in the name of her LDA business, not her BPP business. Kat's blog tells how she spent the day in court because the bankruptcy trustee either didn't take the time to recognize that she operates two separate businesses or didn't' understand the law he is supposed to enforce. It's particularly troubling that the trustee would spend resources on attacking an upstanding member of the LDA community when there are real scam artists out there trying to separate consumers from their money.

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Intellectual property lawyer Graham Syfert was hearing from a lot of defendants in cases about illegal downloading. For many of these people, the amount plaintiffs were seeking from them was substantial, but less than what he would charge them just to begin working on their case. In a savvy business move that also benefits consumers, Syfert began selling forms that would help these people represent themselves. The forms, along with instructions, were priced at $9.99, which is far less than any lawyer would charge.

Nineteen people facing lawsuits from the US Copyright Group (a private company) used the forms to defend themselves. USCG's lawyers responded by asking a court to impose $5000 in sanctions against Syfert for the time it took them to respond to the defendants who used the forms. It should be well known by now that selling legal forms is protected speech under the First Amendment. It's also a good way of leveling the playing field between those who can afford lawyers and those who cannot. USCG is clearly trying to discourage self-represented litigants and those who assist them. Syfert has asked the court to impose sanctions on USCG for its intimidation attempt. While the court has not yet ruled on that issue, there is already some good news for the self-represented litigants: The forms that they filed convinced the court to dismiss USCG's case against them.

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Friday, 30 July 2010 11:04

Don't Sue Them; Join Them

Online document preparation has been around for years, and will hopefully continue to thrive, despite the efforts of the organized bar to restrict consumers' access to this low-cost avenue for legal help.

While some lawyers use accusations of the unauthorized practice of law to try to shut down online providers using lawsuits, others have decided that competition is the best way to challenge these providers.

This article features John Gerber, a lawyer who has created an online portal, UpstartLegal.com, to provide self-help document preparation services to startup companies. In addition to self-serve document preparation, the site offers additional services that a lawyer can perform, distinguishing Gerber's service from other online providers and showcasing the unique value that a lawyer can provide. By adding his own innovation to the model for legal service delivery, Gerber is doing good business while expanding the range of choices available to the public.

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Monday, 25 July 2011 09:52

Forbes Writes About UPL Restrictions

Daniel Fisher of Forbes.com spoke with us recently about the problems with unauthorized practice of law restrictions. He went on to write this column about how the vagueness of UPL laws makes it impossible for service providers to know whether they are providing services legally if those services are even tangentially related to law. The column gives some excellent examples of the legal challenges businesses have faced as they provide services in estate planning, finance, and traffic violation resolution, among others areas. One point we'd like to add to Fisher's analysis is that the challenges faced by businesses become challenges faced by consumers. When businesses cannot provide these services, consumers are stuck with two options: hire an expensive lawyer to help them with writing a will or fighting a traffic ticket, or take on the matter without assistance of any kind. Consumers deserve the choice to hire expert assistance for important life decisions, regardless of whether the expertise comes from a lawyer, financial planner, online software designers, or any other service provider.

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On Friday the United States Citizen and Immigration Services announced that it was beginning a new campaign against individuals falsely purporting to be an attorney qualified to provide immigration services. The initiative includes efforts to increase enforcement of UPL laws, educate the public about how to avoid scams when selecting legal counsel, and increase the number of organizations approved by the Department of Justice Executive Office for Immigration Review (EOIR) to provide immigration aid in underserved areas.

Immigration scams are a real problem that harms consumers. It is commendable the USCIS is working to address this issue, and realizes that part of the solution must be informing the public and providing reasonably priced services above board. However, the problems highlighted by USCIS are far from unique to immigration, and solutions are just as urgently needed in other areas of law.

For instance much of the public does not know how to make smart choices about who to hire as their lawyer in any civil matter. We simply don’t give consumers the information they need to make informed decisions when choosing a lawyer. While consumers have numerous resources to use in choosing a plumber or drycleaner, these options are largely absent when choosing a lawyer. Responsive Law’s Client’s Bill of Rights provides consumers with a set of guidelines for choosing a lawyer and negotiating an agreement with them. This type of information is needed in all areas of law, not just immigration.

Additionally, it is important that in its zeal to prevent non-lawyer scammers, USCIS neither ignores unethical lawyers nor prevent legitimate non-lawyer assistance with immigration matters. There are numerous instances of actual attorneys who have claimed to be assisting immigrants only to take their money and do no work while their client is deported. Such lawyers make it tougher for immigrants to be able to trust the vast majority of immigration lawyers who behave ethically. At the same time, many immigrants either do not need or cannot afford full legal representation but may just need help completing forms or need to be directed to self-help resources. In using restrictions on the unauthorized practice of law to prevent scammers pretending to be lawyers, it is important that USCIS not prevent immigrants from receiving legitimate help from people who make no claim to being lawyers. By casting too wide a net, USCIS may end up wasting resources on prosecuting people who are providing a valuable service along with the bad actors who deserve to be targeted.

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A Kentucky woman convicted of unauthorized practice of law will be appealing (subscription required) the $5,000 fine handed down by the Kentucky Supreme Court for her actions. Della Tarpinian operates what she describes as a scrivener service. Her customers, who need someone to prepare simple legal documents for them, fill out questionnaires which Tarpinian uses to complete fill-in-the-blank legal forms. Document preparation services are licensed and regulated in states such as California and Arizona, providing clear guidelines as to what services non-lawyers may provide. In other states, however, vague definitions of the practice of law leave the legality of these services in a gray area. As a result, consumers do not have the benefit of a robust marketplace providing document preparation services.

Tarpinian has been prosecuted for UPL once before. In 2004, a jury took 15 minutes to acquit her of UPL charges. However, her current conviction did not come as the result of a jury trial, but as the result of findings made by a special commissioner appointed by the Kentucky Supreme Court. However, one thing missing from both the opinion of the Supreme Court and the findings of the special commissioner is a finding that any consumers were harmed as a result of Tarpinian's services. We would venture that the jury in her 2004 case similarly failed to find that Tarpinian caused any harm to her customers, resulting in her rapid acquittal. Unfortunately, in the current case, the bar has made the assumption that provision by non-lawyers of services related to law is by its nature harmful to consumers. This assumption is clearly incorrect, as proven by Tarpinian and the hundreds of licensed document preparers in other states. Whatever the letter of the law may say about whether someone is engaging in UPL, prosecutors and bar associations should decline to bring charges without a showing of consumer harm. To do otherwise is a waste of prosecutorial resources, a miscarriage of justice, and a blow to consumers.

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Wednesday, 20 June 2012 20:00

Washington to Allow Non-Lawyer Providers

 

On June 15, 2012 the Washington Supreme Court adopted a groundbreaking rule which will allow consumers to use non-lawyers with certain training and education to provide technical help on simple legal matters. This Limited Practice Rule for Limited License Legal Technicians (“LLLT”) will be effective September 1, 2012 and is a monumental step toward increasing access to justice for Washingtonians.  The purpose of the rule is to authorize certain persons to render limited legal assistance or advice in approved areas of law.

This rule was a product of the Washington Practice of Law Board, which was created to handle unauthorized practice of law (“UPL”) complaints. In other states, UPL committees are dedicated to defining and investigating complaints for UPL. Such investigations often cause more harm than good to consumers, as they sweep up useful service providers alongside fraudulent ones. However, rather than blindly cutting off non-lawyer services for consumers, this UPL committee focused on finding ways in which access to law-related services can be improved by allowing consumers to use well-regulated non-lawyer professionals.

While some of the specifics regarding Limited License Legal Technicians are still being worked out, there are some guidelines that the Washington Supreme Court has already outlined.  LLLTs must:

  • Pass a moral character and fitness test;
  • Have an associate’s or bachelor’s degree in paralegal/legal assistant studies with a minimum of two years’ experience as a paralegal/legal assistant doing substantive law-related work under the supervision of a lawyer (at least one year of that under a Washington lawyer) or have a post-baccalaureate certificate in paralegal/legal assistant studies along with three years of experience as a paralegal/legal assistant doing substantive law-related work under the supervision of a lawyer (at least one year of that under a Washington lawyer);
  • Complete 20 hours of pro bono legal service in Washington within two years of taking the LLLT exam;
  • Successfully pass the LLLT exam;
  • Show ability to meet financial responsibilities;
  • Have a physical address in Washington;
  • Create a written contract which describes their services and fees;

After an individual meets all of those requirements for an LLLT they will then be authorized to engage in tasks previously allowed only by attorneys. This is a great development because prior to this rule, these tasks, most of which are basic, have been monopolized by the legal profession but can be competently done by well trained and educated individuals for a fraction of the cost of hiring an attorney. 

Some of the tasks which LLLTs will be able to engage in under the new rule are:

  • Explaining facts and relevancy to their clients;
  • Selecting and completing court forms;
  • Informing clients of applicable procedures and timelines;
  • Reviewing and explaining pleadings;
  • Identifying additional documents that may be needed in a court proceeding; 
  • Providing the client with self-help materials approved by the Board or prepared by a Washington state lawyer;
  • Performing legal research and writing legal letters and documents, but only if reviewed; by a Washington lawyer;
  • Advising the client about other needed documents;
  • Assisting the client in obtaining needed documents;

This model also improves upon that of California, which along with Arizona is the only state to license and regulate legal technicians. California currently licenses legal document assistants (http://www.calda.org/ContinuingEducationCodes.asp) (LDAs) to help consumers with legal document preparation.  However, California LDAs are forbidden from offering legal advice, discussing legal strategies, answering legal questions, or selecting forms for the consumer. Therefore, in California, LDAs can be prosecuted for UPL if they advise clients on something as essential as determining which legal forms need to be completed.        

Under the Limited Practice Rule, Washingtonians will have access to a broader range of services from LLLTs than Californians can receive from LDAs. The ability for LLLTs to be able to advise clients on a broader range of tasks, such as which forms are appropriate, will make the program more dependable to consumers.  For example, if a Californian goes to an LDA with a form that is inappropriate for the task at hand, the LDA may not correct them and suggest the correct form. In Washington, the LLLT can correct obvious consumer mistakes such as this.

Allowing access to LLLTs will also allow legal services organizations in Washington to save money and serve more people with complex legal needs, since LLLTs can alleviate many of the simpler legal issues before legal services agencies. Moreover, courts will benefit by facing more knowledgeable self-represented litigants who have filed the correct paperwork and who will be better prepared for the court hearing, resulting in less rescheduling of court dates and less need for judges to explain court processes to litigants. 

With LLLTs being able to handle more basic legal services, consumers will have a greater ability to save money by unbundling legal services. For example, a person with an uncontested divorce could use an LLLT for the majority of the paperwork, such as division of property issues, but might consult a lawyer for more complicated parts of the divorce, such as child custody.  

If Washington continues to execute the licensing and regulation of LLLTs smoothly, and other states follow Washington’s lead, this could be one of the greatest advances for consumers of legal services since the U.S. Supreme Court outlawed mandatory fee schedules in Goldfarb v. Virginia State Bar in 1975.

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Slate recently ran an opinion piece about the different state laws regarding getting vaccinations in pharmacies. While nearly all states allow pharmacists to administer the flu shot, many states do not allow pharmacists to administer similar shots for diseases like shingles and whooping cough. Even though pharmacists have the training necessary to administer shots, state medical associations continue to insist the only doctors should be allowed to give these other vaccines. The article persuasively argues that this system doesn’t make sense. Pharmacists have the training to do this work safely and competently. Allowing pharmacists to give these shots would improve the availability of immunizations and reduce sickness. As the article argues, the level of treatment should match the level of expertise: why should folks be required to book a doctor’s appointment when they can get the service they need from a visit to their local pharmacy?

In many ways, this situation has an analogue in the legal world. Many states continue to support laws that attorneys must be involved in basic legal work such as drafting a will. Even though other types of experienced professionals are trained to handle these basic legal matters, laws often require an attorney to do this work, driving up costs and curtailing access. Given the shortage of legal services many people face, it does not make sense to squander an attorney’s time when another professional could do the same work more efficiently. Just like a doctor should only be consulted on more serious medical issues, an attorney’s extensive knowledge (and expensive rates) should be brought to bear only on legal matters that absolutely need it. Attorneys should not be required to weigh in on routine matters when there is a competent alternative available, often for a lower cost.

As Responsive Law has noted, some states such as California and Arizona allow people to use legal document assistants (LDAs) for certain services. LDAs are professionals licensed by the state to prepare documents without the assistance of an attorney. This recognizes that just as not every medical problem needs a doctor, not every legal problem needs an attorney. But state bar associations have been just as strident as their medical counterparts in their efforts to limit consumers’ choices. They continue to support laws that artificially keep the supply of licensed professionals down, which drives the price of services up. Just as states should be concerned about the fact that the public’s health needs aren’t being addressed, they should recognize that people’s legal needs aren’t being addressed. They should undertake similar reforms to expand the work that LDAs and other qualified non-attorneys are allowed to do for the public.

Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.

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