Monday, 17 January 2011 14:00

Removing barriers to virtual legal practice

Reducing regulatory barriers to practicing online would go a long way towards improving access to justice. Darryl Mountain examines the issue here.

Published in Blog
Tuesday, 30 March 2010 20:00

Popularity of online law rising

In a recent commentary on the Wisconsin Law Journal's Blog, Karl Robe noted the increasing popularity of online legal services like LegalZoom, warning that such sites pointed to a trend toward the commoditization legal services. Robe notes that this potential trend toward commoditization "means the profession and its ability to maintain profit margins is in jeopardy of value erosion. Unless more traditional practices and firms enhance their online status to rise above the din, they risk being drowned out of the conversation."

Perhaps things aren't quite as desperate as Robe makes it seem, neither for lawyers or consumers. It is understandable that the legal profession has concerns about its services becoming commoditized; legal advice can be one the most important services a consumer pays for. But just because someone purchases a will online, for example, doesn't make a will a "commodity." There may be a great many people for whom an online will is more than enough to suit their needs. But not everyone will buy their law off the rack, so to speak. And for those individuals, establishing a traditional attorney/client relationship might be the best choice.

While I doubt that traditional law will ever be "drowned out of the conversation," Robe does offer good advice to attorneys in the sense that traditional lawyers need to reconsider how they make their services available to consumers. Far from deflating the value of traditional legal services, alternative providers may well open new markets to attorneys by allowing entry into the market for legal services to people normally excluded.

That consumers seem to be embracing new ways of receiving legal services merely reveals that the market for legal services may be broader than attorneys may realize. Sound legal advice is just as in demand and just as essential now as it ever was and that advice is has the same value whether it is provided online on an as-need basis or across a desk in a law office conference room. The important thing is that the advice finds its way to the consumer who need it.

Published in Blog
Sunday, 12 September 2010 20:00

DIY Legal Software Reviewed in New York Times

Recently, the New York Times did consumers a great service by reviewing self-help legal products. That review can be found here. A follow-up blog post on the article can also be found here. While it's true, as was noted in the article and the blog, that not every consumer is best served by DIY software, not every consumer is best served by a lawyer either. Consumers are best served when there is a wide range of legal services available to meet the continuum of legal needs that they face.

What's missing in the current model of the profession is a wide selection of options between full service and self service. In medicine, nurse practitioners, physicians' assistants, and midwives are among the options that people can use when dealing with health issues. Unfortunately, the legal profession has very few professionals occupying this middle ground. More states need to follow the lead of California and Arizona in licensing legal document assistants and legal document preparers--non-lawyers with training to prepare simple legal documents. Also, lawyers need to be more innovative in providing mid-level services. For example, more lawyers need to make themselves available for review of DIY forms, or to draft documents for self-represented litigants, or to provide short coaching sessions to small claims litigants.

The bottom line is that consumers need more options in how to navigate a legal system that is too complex, and that they need to be educated about how to best use the services that do exist. That is why we're working to make the legal system more affordable and accessible for its users by educating consumers and influencing policy around the customer-friendly practice of law.

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Laurence Tribe, President Obama's Access to Justice Counselor, addressed the ABA convention last week. After acknowledging the contribution of pro bono attorneys, he pointed out that pro bono assistance alone is not capable of filling the gap in legal needs faced by the poor and middle class. "I would encourage all of you," Tribe said, "to derive satisfaction as well from the less direct, but no less real, relief that we bring to others through the avenue of systemic reform."

Among the reforms Tribe suggests are the revision of UPL laws to allow non-lawyers to provide simpler legal tasks, and the use of technology to establish better self-help centers located in courts and communities. A video of Tribe's complete address is below. Below that, we have transcribed the last several minutes of his speech (from 18:14 to the end), which contain most of his recommendations for systemic reform.


Excerpt From Laurence Tribe's August 9, 2010 Speech to the ABA
(as transcribed by Consumers for a Responsive Legal System)

But even if all the lawyers in the room rededicated themselves to pro bono work and we increased funding for civil legal services fivefold, we still wouldn't have enough lawyers to meet all the needs of the poor and working class. Many of our fellow citizens will still have to navigate our labyrinthine legal system without the help of any member of the bar.

But maybe this is just the time to see this glass as half-full. This may well be the time to take advantage of our new technologies and harness them to pro se litigation. Many innovative programs have taken hold across the country, incorporating web-based systems in self-help centers located in courtrooms or elsewhere in the community. I have no doubt that these projects can be smoothly integrated into existing pro and low bono efforts to optimize the delivery of services to those in need. But I am equally sure that this cannot happen without a serious reexamination of the rules governing the unauthorized practice of law.

As we embrace the myriad new technologies and accompany them with badly needed form simplification, we must promulgate clear rules that govern court staff and non-lawyers in guiding prospective litigants through the maze of self-help forms, especially those that are interactive.

Not even the fanciest technology on earth can fully replace the need for human help. But many lawyers fear that their well-being and the success of their profession demands an airtight legal monopoly whose members represent adversaries before a passive judiciary. Deep-rooted habits resist having either those on the bench or those outside the bar help with even the simplest and most straightforward legal issues. Many worry that having judges assist unrepresented litigants will compromise their judicial objectivity, and that the work well-trained non-lawyers would do in supplementing such assistance would cut deeply into their own livelihoods.

My advice: Prove them wrong. Show them that we can distinguish the tasks that truly need a licensed lawyer's expertise from those that can be capably performed by non-lawyers without making us obsolete, given how huge the unmet need truly is. Challenge your courts not to confuse neutrality with passivity, and to embrace codes of judicial conduct that go beyond merely tolerating judicial assistance to unrepresented litigants. And challenge your bar associations to embrace rules of professional practice that welcome the provision of desperately needed legal help from dedicated and talented non-lawyers alongside licensed attorneys.

Other countries have learned how to protect clients from unsound advice and inept representation, without erecting prohibitive barriers to legal assistance. There is no reason that we cannot do so as well. Nothing less than such reforms can bring justice within reach of all Americans. And mark my words: In an increasingly globalized world of legal practice, nothing less can preserve the health of America's legal profession.

You've all heard, I think, of the trickle-down theory-the theory that if we help those at the top, those at the bottom will eventually benefit from the fallout. I've never been convinced about that. But I am convinced that if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to justice are lowered. The challenge, of course, is to do just that: to use our privileged positions as guardians of the law to lift up the most vulnerable and needy among us, when so much else competes for our attention. "The road is long," say the lyrics of one of my favorite songs, "With many a winding turn/That leads us to who knows where, who knows when/But I am strong/Strong enough to carry him/He ain't heavy/He's my brother." Thank you very much.

Published in Blog
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,, 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.

Published in Blog
Monday, 05 April 2010 20:00

New Jersey bans virtual law offices

The New Jersey State Bar Association's Advisory Committees on Professional Ethics and Attorney Advertising issued a joint opinion on March 26th effectively banning lawyers from creating virtual law offices. The decision requires every attorney to maintain a permanent address. This comes as virtual law offices, in which the attorney maintains an online or "virtual" law office and rents office space as needed, are growing in popularity. According to New Jersey State Bar Chief Allen Etish, "[t]he need for a bona fide office is necessary," while acknowledging "that the idea of a virtual office needs more study," noting that virtual law offices are "not totally wild-eyed or preposterous."

It is very good to hear that the New Jersey State Bar is interesting in further examining the use of virtual offices, but in rendering its opinion has shown a reluctance to embrace current trends in legal practice that might help make the law more affordable for consumers. The decision effectively requires an attorney to either maintain a permanent office or to create one in their home, which creates problems for attorneys who'd like to keep a home office, but do not want to use it to meet with clients or to list the address for privacy and security reasons. For consumers, office space contributes to the attorney's overhead, which can increase the costs for that attorney's services. Allowing attorneys to maintain virtual offices would help them provide consumers with lower cost alternatives to a traditional law office.

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In an ongoing battle over whether LegalZoom is engaged in the unauthorized practice of law in Missouri, a federal district court has rejected a motion by LegalZoom to declare that it is not engaged in UPL. This means that it will be up to a jury to decide whether consumers in Missouri will have access to LegalZoom's services.

This decision is troubling on several counts. First, part of the basis for the court's decision is the fact that the programmer of LegalZoom's software is not a licensed Missouri lawyer. If this is relevant to a finding of UPL, then publishers of self-help books could face similar lawsuits for UPL. LegalZoom's software behaves very much like a self-help book that includes forms with instructions to complete them. It merely automates what would be a lengthy series of written steps for a person without computer assistance to follow. Theoretically, a person using the software could complete forms by following each of the steps in the computer program without the assistance of software. If the definition of practice of law is predicated upon whether the self-help process is accelerated--without otherwise being changed--through computer automation, then consumers will have access only to slower, clunkier self-help assistance.

Another troubling element of the court's decision is its reliance on the human element in LegalZoom's services as part of its analysis of whether LegalZoom engaged in UPL. Specifically, the court calls out human-delivered services such as "review[ing] the data file for for completeness, spelling and grammatical errors" and "correcting word processing 'widows,' 'orphans,' page breaks, and the like." When I was in law school, my legal writing classes never included a lesson entitled "Widow and Orphan Control, Page Breaks, and the Law." Providing these services is the practice of copyediting, not the practice of law.

Of course, the most troubling aspect of this whole case is that, as the court acknowledges, the plaintiffs have neither asserted that they believed LegalZoom was acting as a lawyer, nor that the forms they created using LegalZoom were deficient in any way. If UPL restrictions exist to protect consumers, and not to protect the bar from competition, then consumer harm should be a necessary element of any UPL complaints. We hope that the twelve men and women who will now decide this case will apply a "no harm, no foul" standard to preserve affordable access to self-help assistance for Missourians.

Published in Blog

A recent New York Times article describes advances that allow computers do much of the work lawyers do in complex litigation where there are millions of documents and emails that need to be reviewed before trial. But computers can also help simplify everyday legal matters such as wills, divorces, and bankruptcies.

Information gathering is good example of a task that computers do well. In corporate litigation, sophisticated software applications relieve lawyers of having to spend many tedious hours sifting through e-mails. Similarly, legal software for consumers can flawlessly execute a checklist of questions designed to gather the right information and then complete forms that many people would have made mistakes on their own.

In both cases software allows lawyers to focus on what they do best: legal analysis and strategic planning. In the corporate scenario, more of the client’s money goes toward these higher-end functions because the computer gathers information not junior associates who bill hundreds of dollars an hour. In the consumer scenario, software can enable a person to draft their own document rather than paying a lawyer or paralegal to do the same task. The resulting savings can then be put toward hiring a lawyer to review their document. It is worth noting that because many people cannot hire a lawyer at all, the alternative to software-assisted legal drafting is having no assistance at all.

In the 1999 case Unauthorized Practice of Law Committee v. Parsons Technology, a federal court held that Quicken Family Lawyer software was acting as a “cyber-lawyer” and therefore violated the state’s Unauthorized Practice of Law statute. The Texas legislature quickly passed a bill amending the statute. We hope that, as legal software becomes more sophisticated, the legal profession will continue to recognize the valuable role computers can play in increasing consumers’ access to justice.

Published in Blog
Tuesday, 31 July 2012 20:00

ABA To Consider Virtual Lawyering Rules

The American Bar Association (“ABA”) Commission on Ethics 20/20 recently requested comments regarding the rules governing lawyers practicing across state lines via internet. Responsive Law suggested to the ABA that opening up the internet for legal services is highly beneficial to consumers and will make the legal system more affordable without sacrificing the accountability that is already present. 

Allowing lawyers to practice across state lines via internet is extremely beneficial to consumers. Although it is a relatively new practice, it is one that has great potential for increasing affordable access to the legal system.  Online commerce has expanded the availability of goods and services in nearly every industry, particularly for those located far from major cities. People currently use companies such as eBay and Amazon to order products and the availability, convenience, price and safeguards of these companies continuously drive customers to use and reuse their services. Similarly, the legal profession, with its duty to protect access to justice, should support any effort to make the legal industry friendlier to online commerce in the way that successful internet companies already have.

Virtual law practices will improve communication between lawyers and clients.  Many computer-savvy people may be more comfortable interacting with a lawyer online than through postal mail or in person. Since the internet does not require simultaneous communication, virtual practices can also expand the number of hours during which lawyers and clients can communicate thus increasing access. 

Although there are many positive aspects of practicing via internet, some states are moving towards prohibiting licensed lawyers from practicing law in the state unless they hold a physical office in that state.  This is extremely inconvenient for the person seeking legal assistance. For example, a New York resident who moves to Tennessee to take care of aging parents will not be able to hire an attorney licensed in New York unless that attorney has a physical office in New York.  For this consumer, whether they are dealing with a lawyer physically located in New York or New Jersey, or even California is irrelevant. What is relevant is that the lawyer is competent to deal with the client’s issues relating to New York law. Unfortunately, on top of the burden of caring for aging parents, this person will now have to travel back and forth to New York rather than handle their legal matters online.

Even though we currently live in a mobile society, there are an increasing number of situations, like the New-York-to-Tennessee move, where restrictions on practice based on physical location of the lawyer hinder one’s ability to receive legal services. These anticompetitive restrictions reduce access to the law, yet provide no additional protection to consumers.

While some of the criticisms regarding lawyers practicing across state lines via internet involve a decrease in quality and accountability of legal service, most of those criticisms are largely unfounded.  In the same way that eBay and Amazon are held accountable for dissatisfied customers, lawyers practicing across state lines via-internet can be held accountable for any bad legal practices. If one is dissatisfied with the services of their virtual lawyer, they can hold that lawyer accountable in the same ways in which they can hold an attorney accountable who lives down the street.  Lawyers, regardless of whether they are engaging in physical or internet practice can be held accountable through civil lawsuits, or action by bar disciplinary committees in the state where they are licensed.  Moreover, while consumers can hold lawyers equally accountable whether the lawyer is working in person or virtually, choosing virtual lawyering can result in lower cost and more options when choosing a lawyer.

Virtual law practice has great potential for increasing affordable access to the legal system.  It enables consumers to have greater access to affordable and competent legal work while keeping it accountable and cost-effective. You can read our full comments to the ABA, urging them to allow this practice to grow.

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The hotly contested Senate race in Massachusetts recently touched the legal world. Critics accuse Democratic candidate Elizabeth Warren of engaging in the unauthorized practice of law in Massachusetts because she wrote a number of amicus briefs filed in federal appeals court from her office at Harvard Law School. State ethics rules prohibit a lawyer who is not licensed in state from establishing “an office or other systematic and continuous presence in this jurisdiction for the practice of law.”
While Warren’s work on corporate bankruptcy cases may seem removed from the legal needs of everyday people, this incident illustrates a broader concern: many state ethics rules are still based around the idea that a lawyer’s practice is inexorably linked to their physical location. What matters is not the lawyer’s familiarity with state law or whether they are licensed to appear in court, but where the desk they worked at was physically located.
As Responsive Law has previously noted, basing a system around an attorney’s office address hinders consumers’ access to legal resources. Consumers across state lines are prevented from seeking out otherwise competent and accredited attorneys if that attorney isn’t near a certain location. For example, if a person in Connecticut goes into foreclosure, they could not have their longtime attorney work on the case if the attorney is currently attending a conference in Massachusetts. Even if the attorney is registered with the Connecticut Bar and familiar with Connecticut law, the attorney cannot provide services in Massachusetts unless they have an office there. In order to do any work on the foreclosure case, the attorney must drop everything and return to Connecticut. The consumer either would have wait and hope for the attorney’s speedy return or go through the process of finding another attorney. These restrictions diminish access to legal resources by making it inconvenient and expensive to conduct legal business across state lines by forcing attorneys to constantly travel instead of working online.
These days, both consumers and attorneys are constantly on the move. Rules that hold that a physical office is integral to the practice of law restrict access and raise the costs of legal services whiling doing nothing to protect consumers from actual frauds and charlatans.  This system should be abandoned for one that allows for better virtual access to law. An attorney’s competence and familiarity with the law, and not the location where they do their research and writing, should be the relevant factor when a consumer decides whose legal service is best for them. At a time when legal resources are prohibitively expensive and inaccessible to so many, states like Massachusetts should adopt rules that drive down costs through competition and enhance consumer choices. Consumers should not have their choices artificially restricted based on where a lawyer has their mail delivered.
Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.
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