Scriveners in Cyberspace: a Review of the work by Catherine J. Lanctot

The research paper “Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law” by Catherine J. Lanctot explores the challenges posed by online legal document preparation services concerning the unauthorized practice of law (UPL). The core findings and conclusions of the paper include:
  1. Ambiguity in Defining Legal Practice: The legal profession struggles to define what constitutes the “practice of law,” making it challenging to regulate non-lawyers who offer legal document services.
  2. Growth of Online Document Providers: Websites like Desktop Lawyer and LegalZoom provide consumers with customizable legal documents, raising concerns about UPL because these services might cross the line between providing information and legal advice.
  3. Regulatory Challenges: The rise of automated legal document services challenges traditional UPL enforcement. Courts and professional bodies have historically prohibited non-lawyers from offering personalized legal advice or assisting with legal documents, but these new technologies blur those boundaries.
  4. Legal Precedent and Enforcement: Courts have historically sanctioned non-lawyers for offering document preparation services with legal advice. However, software-based and online platforms complicate this, as they provide document assembly without direct human interaction.
  5. Consumer Protection vs. Market Control: The paper highlights the tension between protecting consumers from unqualified legal services and the legal profession’s potential self-interest in maintaining a monopoly over legal services.
  6. Constitutional Considerations: Efforts to regulate online document providers face First Amendment challenges. Restrictions on these services could be seen as limiting free speech, especially when distinguishing between providing legal information and legal advice is complex.
  7. Policy Implications: The paper concludes that applying traditional UPL rules to modern, automated document services may not be effective or appropriate. The legal system must balance consumer protection with access to affordable legal resources and consider whether regulation aligns with constitutional rights.
  8. Types of Technology – This is a direct quote from Lanctot’s Paper: “Broadly speaking, there are two types of services provided online that raise questions about unauthorized practice: (1) services that provide blank forms, with instructions, that enable consumers to prepare their own legal documents; and (2) services that go one step further, and fill out the forms for the consumers, based on information the consumers provide. Before examining the law governing lay form preparation, let us briefly explore examples of the websites that provide these services” (P. 6 of the PDF and labeled P. 815 in the Paper Itself).
    1.  Desktop Lawyer using Rapidocs.
      1. Desktop Lawyer use in Divorce brought it under fire from Catholic Church.
    2.  MyLawyer.com
    3.  LegalZoom.com
    4.  Norman Dacey – How to Avoid Probate – Tons of UPL Trouble
    5.  Quicken Family Lawyer, Texas UPL v. Parson’s Technology

In summary, Lanctot calls for a nuanced approach to regulating online legal document services that considers both consumer protection and evolving technological realities while recognizing constitutional constraints

 

——- BELOW IS A SET OF SUMMARIES OF THE CASES THAT ARE REFERENCED IN THE ACTUAL WORK WHICH IS SUMMARIZED ABOVE.——-

Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court: A New York law firm was found to have engaged in unauthorized practice of law by advising a California client on California law without being licensed in California.

Jacobellis v. Ohio: U.S. Supreme Court case where Justice Potter Stewart famously stated he could not define pornography but ‘knew it when he saw it,’ illustrating challenges in defining certain legal concepts.

Grievance Comm. v. Dacey: Norman Dacey was found guilty of unauthorized practice of law for publishing estate planning guides with legal forms and instructions.

N.Y. County Lawyers’ Ass’n v. Dacey: The New York Court of Appeals ruled that selling books with legal forms did not constitute unauthorized practice of law, reversing a lower court’s decision.

Dacey v. Fla. Bar, Inc.: Dacey’s claim that his First Amendment rights were violated by restrictions on his publications was dismissed due to lack of evidence of malice.

Florida Bar v. Stupica: The Florida Supreme Court ruled that selling legal forms with instructions constituted unauthorized practice of law.

Oregon State Bar v. Gilchrist: Permitted the sale of divorce kits without legal advice, barring personal interaction that involves legal guidance.

State Bar v. Cramer: Allowed selling legal forms but prohibited providing legal advice in Michigan.

Florida Bar v. Brumbaugh: Permitted sale of legal forms with generic instructions but banned giving tailored legal advice in Florida.

Palmer v. Unauthorized Practice Comm.: Texas court banned selling will forms with instructions, deeming it unauthorized legal practice.

Fadia v. Unauthorized Practice of Law Comm.: Texas court ruled that selling a do-it-yourself will manual was unauthorized legal practice.

Unauthorized Practice of Law Comm. v. Parsons Tech., Inc.: Texas court banned the sale of Quicken Family Lawyer software, deeming it unauthorized legal practice until legislation changed.

In re Kaitangian: A court ruled that using software to prepare bankruptcy forms constituted unauthorized legal practice.

In re Wagner: A preparer was sanctioned for making legal decisions in bankruptcy filings, constituting unauthorized practice.

In re Moffett: A preparer was found to engage in unauthorized practice by selecting bankruptcy exemptions using software.

In re Moore: A preparer was sanctioned for offering legal advice to bankruptcy clients without being licensed.

In re Hartman: A preparer violated bankruptcy laws by giving legal advice while preparing documents.

In re Agyekum: A preparer was penalized for charging fees for ‘licensed’ documents, deemed unauthorized legal practice.

In re Campanella: A business selling bankruptcy kits was criticized for misleading consumers, though not ruled as unauthorized practice.

 

——- How DocupletionForms.com Helps Professionals Avoid UPL ——-

  • Conditional Logic allows for incremental explanations and help texts that show the significance of one choice or another by showing what next questions will have to be answered or which documents will be selected based on answers or which way different documents will be completed, and also which different procedures will need to be followed.
  • An Encoding of a Law and/or Document Process exists in the form of an already written bit of code with which a person who has some legal issue interacts.  This is like a person picking up a book off of the shelf in a library and reading it and while reading it, deciding a path through their legal situation.  This is first amendment coupled with sixth amendment protected on both the authorial/publishing side of the expert document system encoding and the side of the person needing to seek out tools to help them represent themselves.