Damien Riehl writing in the Computer Law Section blog notes a recent 9th Circuit decision holding that a company operating a bankruptcy petition preparation website was engaged in the unauthorized practice of law.
The decision seems sound given its facts, and the Court says that its decision is about only those facts, not to the use of forms or software generally. The decision emphasizes the following:
Frankfort held itself out as offering legal expertise. Its websites offered customers extensive advice on how to take advantage of so-called loopholes in the bankruptcy code, promised services comparable to those of a “top-notch bankruptcy lawyer,” and described its software as “an expert system” that would do more than function as a “customized word processor[ ].”
That emphasis allows one to wonder, though, whether a company that charged the same, and produced the same forms, but whose pitch was different, could escape the “unauthorized practice” decision. What if a company's pitch was
Many people don't need personalized legal advice. Many cases fall in a routine middle range. Personalized legal advice can only come from a lawyer. But it will cost more upfront than mere form preparation. Only you can decide whether the extra cost is worthwhile. If you are willing to forego the possible advantages of personalized legal advice, our you-tell-us-which-form-to-fill-in approach may be for you. Sometimes an off-the-rack suit does as well as a tailored one. We claim no expertise; only that many lawyers wouldn't invest much thought in your case, either."
It's a rather insulting pitch. But it avoids the "expert systems" claim. Of course, the site would have to operate in accordance with its "we're just scriveners, not experts" claim, too. Rather than choose what forms to fill out, it might provide merely some text describing when form A is used and when form B is, and then provide a "select: A [] or B []" radio button. But it could be done. HotDocs interviews do that kind of thing.
The idea is open to criticism on two sides. On one side, a court might still be able to find it was unauthorized practice in substance, despite the "we're no substitute for experts" facade. On the other side, it might not fly as a sales proposition. But maybe that's the point: a clear disclosure that the customer's taking a risk and could be making a mistake by not hiring a lawyer might be enough.
On a broader note, the decision reminded me of why I prefer to think of lawyers with good sources of model, not form, documents. Models can be adapted. Of course, a recognized, familiar form can be good, if it allows a lawyer to save his or her client time, by being able to rely on knowing the form's contents (and their acceptability) even without reading every word. But that happens in only a few areas of practice, as far as I know.