The ability to sign electronically is a convenient process allowing people to sign documents or confirm purchases from the comfort of their homes. However, the use of electronic signatures has not yet been applied to the process of estate planning. The 2016 Gallup Poll determined that the percentage of Americans with a will was only 45%, leaving the other 55% of the U.S. population with no record of their wishes upon their death. Responsive Law recently released a statement stating its support for laws that would allow for greater use of electronic signatures in estate planning.
In its statement, Responsive Law noted that “there is undoubtedly a segment of this population that is inhibited from preparing a will because of the need to have a physical signature on the document.” Responsive Law’s statement also recognizes that electronic signatures would increase the ability to create wills due to the process becoming more accessible and affordable to the public. In addition, cutting traveling and mailing costs out of estate planning could further simplify the process of getting a will, making it more likely that Americans would do so.
Several state legislatures are considering bills that would permit electronic signatures in estate planning. Florida’s SB 206, New Hampshire’s SB 40, Arizona’s SB 1298, and Indiana’s HB 1107 would all provide guidance on allowing the convenience of e-signatures while ensuring their validity.
Planning for the future after death can be harrowing for most, but it is also an important step. Responsive Law advocates for any process that can make this step easier for those who partake in it. E-signatures can greatly benefit the 55% of Americans who do not yet have a will, and Responsive Law believes that it is time to make that change a reality.
Angel Gutierrez is a Responsive Law intern.
Responsive Law, along with a coalition of law professors and alternative legal service providers has filed an amicus curiae brief in the U.S. Supreme Court case of North Carolina State Board of Dental Examiners v. FTC. The case concerns whether dentists on the state licensing board are exempt from antitrust law for their behavior in banning non-dentists from providing teeth-whitening services.
While dentistry is not part of Responsive Law’s mission, the case has important implications for the regulation of the legal profession and whether anyone besides lawyers will be allowed to provide legal services. The position of dental examiners in this case is directly analogous to that of lawyers who regulate the legal profession through state bar associations. In both cases, a group of professionals that has a financial self-interest in excluding outsiders has been given the power to regulate the profession. Unsurprisingly, in the case of both dentists and lawyers, the professionals have used this power to exclude outsiders. In both cases, it is the public who suffers, by being forced to pay cartel prices for services.
The damage caused by a self-regulating cartel is even greater in the case of lawyers than it is for dentists. The cost of the legal cartel is the denial of access to justice for the vast majority of the American population. When lawyer prices start at $200 per hour, only the richest people can afford to pay lawyers for everyday legal needs, such as simple estate planning, arranging child custody, landlord-tenant disputes, or addressing consumer debt matters. As a result, over 80 percent of Americans are unrepresented when such matters go to trial. And that number reflects the lack of legal help for crisis-level legal problems—those that are headed to court. An even greater percentage of people are priced out of legal help when facing these matters at an early stage, when basic legal help could prevent smaller issues from erupting into a crisis. Given these conditions, it’s no wonder that a recent study found that the US was tied with Kyrgyzstan, Mongolia, and Uganda in the affordability and accessibility of its legal system.
In the face of this access to justice crisis, state bars, many of which claim to be committed to equal access to the legal system, are concerned primarily with their own wallets. State bars have acted aggressively to shut down any attempt by non-lawyers to provide legal assistance to the large number of Americans who need help. State bars use their power to regulate who may practice law (and expansive definitions of the practice of law that they have created) to protect itself from non-lawyer competition. This type of cartel is exactly the type of danger that antitrust laws are designed to protect consumers from.
State bars argue that their behavior is exempt from antitrust regulation because they are given their power by the state government. However, private actors acting to restrict competition have not been viewed as exempt from antitrust enforcement merely because they are part of a state board. In fact, the ability of the bar to use state-granted power to enforce its monopoly makes its behavior even more harmful to consumers.
The self-regulatory nature of lawyer regulation is at the root of our access to justice crisis. If lawyers did not have the ability to use government power to protect themselves from competition, we’d see more innovation and lower prices in the legal services market, both from the innovative non-lawyer services that would be permitted to flourish, and from the innovation and lower prices that lawyers would be forced to provide to remain competitive in an open market. We hope the Supreme Court will agree when it hears the case on October 14.
David Feldman, a New York City lawyer, has a post in his blog today that concisely addresses many of the issues surrounding LegalZoom and other online legal service providers facing prosecution for the unauthorized practice of law (UPL). His post is worth reading, and gives me the opportunity to raise a few points that I've raised in other places about how the legal profession has responded to both competition and technology.
LegalZoom's product, other than automation, is not fundamentally different from books with accompanying forms that publishers like Nolo have been selling for decades. Decisions to prosecute LegalZoom and other online self-help services are driven by fear of technology and fear of competition—both of which are things that lawyers should embrace, rather than fear.
Rather than fearing technology, lawyers should make their services more available online, so that they can capture some of the market that LegalZoom has so successfully captured. And lawyers should better market the expertise that differentiates them from legal form providers. A lawyer can give you advice about whether to incorporate your business, rather than just the forms to do so, or advice about how to plan your estate, rather than the form for a will. If the public understood this, then lawyers would be better able to either compete with or work in conjunction with self-help services, rather than trying to eliminate them by using the bar's government-granted monopoly to make such services illegal.