SANDERS, Senior J.
Before the Court are Plaintiff's Motion for Summary Judgment and Supporting Brief, filed September 28, 1998; Defendant's Response to the Committee's Motion, filed October 13, 1998; Plaintiff's Reply to the Defendant's Response, filed October 26, 1998; Defendant's Motion for Summary Judgment and Supporting Brief, filed September 28, 1998; Plaintiff's Response to Defendant's Motion, filed October 13, 1998; and Defendant's Reply in Support of Motion for Summary Judgment, filed October 23, 1998. On December 4, 1998, this Court issued an Order striking the Report of Professor Brian Serr as Summary Judgment evidence. The Court heard oral argument on the cross-motions for summary judgment on December 17, 1998.
Having considered the motions, briefs, and arguments of both parties, and for the reasons set forth below, the Court concludes that there are no genuine issues of material fact and that Plaintiff Unauthorized Practice of Law Committee is entitled to judgment as a matter of law. Therefore, Plaintiff's Motion for Summary Judgment is granted and Defendant's Motion for Summary Judgment is denied.
The Plaintiff, the Unauthorized Practice of Law Committee ("the UPLC"), is comprised of six Texas lawyers and three lay citizens appointed by the Supreme Court of Texas. The UPLC is responsible for enforcing Texas' unauthorized practice of law statute, Tex. Gov't Code §§ 81.101-.106 (Vernon's 1998) ('the Statute"). [FN1]
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
The Defendant, Parsons Technology, Inc., ("Parsons") is a California corporation, whose principal place of business is Iowa, and is engaged in the business of developing, publishing and marketing software products, such as Quicken Financial Software, Turbo Tax, and Webster's Talking Dictionary. Parsons has published and offered for sale through retailers in Texas a computer software program entitled Quicken Family Lawyer, version 8.0, and its updated version Quicken Family Lawyer '99 ("QFL"). [FN2]
QFL is the product at the center of this controversy. In its most recent version, QFL offers over 100 different legal forms (such as employment agreements, real estate leases, premarital agreements, and seven different will forms) along with instructions on how to fill out these forms. QFL's packaging represents that the product is "valid in 49 states including the District of Columbia;" is "developed and reviewed by expert attorneys;" and is "updated to reflect recent legislative formats." (Pl's Ex. 1, p. 8.) The packaging also indicates that QFL will have the user "answer a few questions to determine which estate planning and health care documents best meet [the user's] needs;" (Pl's Ex. 1, p. 9), and that QFL will "interview you in a logical order, tailoring documents to your situation." (Pl's Ex. 1, p. 8.) Finally, the packaging reassures the user that "[h]andy hints and comprehensive legal help topics are always available." (Pl's Ex. 1, p. 8.)
The first time a user accesses QFL after installing it on her computer the following disclaimer appears as the initial screen:
For example, we can provide a form for a lease, along with information on state law and issues frequently addressed in leases. But we cannot decide that our program's lease is appropriate for you.
Because we cannot decide which forms are best for your individual situation, you must use your own judgment and, to the extent you believe appropriate, the assistance of a lawyer.
On the initial use of QFL, or anytime a new user name is created, QFL asks for the user's name and state of residence. It then inquires whether the user would like QFL to suggest documents to the user. If the user answers "Yes," QFL's "Document Advisor" asks the user a few short questions concerning the user's marital status, number of children, and familiarity with living trusts. [FN3] QFL then displays the entire list of available documents, but marks a few of them as especially appropriate for the user based on her responses.
When the user accesses a document, QFL asks a series of questions relevant to filling in the legal form. With certain questions, a separate text box explaining the relevant legal considerations the user may want to take into account in filling out the form also appears on the screen. As the user proceeds through the questions relevant to the specific form, QFL either fills in the appropriate blanks or adds or deletes entire clauses from the form. For example, in the "Real Estate Lease--Residential" form, depending on how the user answers the question regarding subleasing the apartment, a clause permitting subleasing with the consent of the landlord is either included or excluded from the form.
If a user selects a "health care document" (i.e., a living will, an advance health care directive, or a health care power of attorney) the following screen appears:
Family Lawyer assumes that you wish to have a health care document based on the laws of your state.
When you select a living will, health care power of attorney, or advance health care directive, Family Lawyer will open the appropriate document based on your state.
When a Texas user selects a health care document a form entitled "Directive to Physicians and Durable Power of Attorney for Health Care" appears.
In addition to the separate text boxes providing question and form specific information, at any time throughout the program, the user may access various other help features which provide additional legal information. One such feature is "Ask Arthur Miller," where the user selects a general topic and then a specific question, [FN4] after which either a text-based answer is provided or, if the user's computer has a CD-ROM player, a sound card and a video card, a sound and video image of Arthur Miller answering the question appears.
In addition, it is important to remember that most states have laws regarding the rights and obligations of landlords and tenants. These laws may limit the amount of rent or security deposit that can be charged. They may also spell out the required procedures for removing a tenant, and explain the procedures that must be followed by the landlord before claiming all or a portion of the security deposit. Be sure you understand your state's landlord and tenant laws.
II. RELEVANT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could possibly find for the nonmoving party as to any material fact. Fed.R.Civ.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir.1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir.1998) (citing Celotex, 477 U .S. at 322- 25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. Fed.R.Civ.P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir.1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.1991).
With these summary judgment standards in mind, the Court turns to the cross-motions for summary judgment.
A. Determination of This Suit on Summary Judgment.
Under both Texas substantive law and the Federal Rules of Civil Procedure, it is appropriate for this Court to decide this case on summary judgment at this time. Under Texas law, a court may determine whether the undisputed acts of a defendant fall within the statutory definition of the unauthorized practice of law. Unauthorized Practice of Law Committee v. Cortez, 692 S.W.2d 47, 51 (Tex.1985). While the right to trial by jury exists where the alleged acts purportedly constituting the unauthorized practice of law are disputed, the "courts ultimately decide whether certain undisputed activities constitute the unauthorized practice of law." Id. Therefore, if there are no disputed facts, it is appropriate for this Court to decide the issue of whether the undisputed acts fit within the definition of the unauthorized practice of law.
In this case, there are no genuine issues of material fact or disputed acts. Parsons' act of publishing QFL is undisputed. The contents of QFL are undisputed. All that remains to be determined is the legal consequences, if any, of these undisputed acts, and according to Cortez, the power to make this determination ultimately resides with the Court. Therefore, under both Texas law and the traditional federal summary judgment standards, this case is ripe for decision on summary judgment.
B. The Violation of the Texas Unauthorized Practice of Law Statute.
The UPLC moves for summary judgment because it claims, as a matter of law, the sale and distribution of QFL violates the Statute. The UPLC argues that QFL gives advice concerning legal documents and selects legal documents for users, both of which involve the use of legal skill and knowledge, and this constitutes the practice of law. [FN7] Additionally, the UPLC argues that the Defendant's forms are misleading and incorrect. (Pl's Brief in Supp. of Mot. for Summ. J. at 5). In sum, the UPLC alleges that QFL acts as a "high tech lawyer by interacting with its 'client' while preparing legal instruments, giving legal advice, and suggesting legal instruments that should be employed by the user." (Pl.'s Reply to Def's Resp. to Pl's Mot. at 3.). In other words, QFL is a "cyber-lawyer."
No one disputes that the practice of law encompasses more than the mere conduct of cases in the courts. See In re Duncan, 65 S.E. 210 (S.C.1909) (finding that the practice of law includes "the preparation of legal instruments of all kinds, and, in general, all advice to clients, and all action taken for them in matters connected with the law."). However, a comprehensive definition of just what qualifies as the practice of law is "impossible," and "each case must be decided upon its own particular facts." Palmer v. Unauthorized Practice of Law Committee, 438 S.W.2d 374, 376 (Tex.App. - Houston 1969, no writ); see also State Bar of Michigan v. Cramer, 249 N.W.2d 1, 7 (Mich.1976) ("any attempt to formulate a lasting, all encompassing definition of 'practice of law' is doomed to failure.").
The UPLC, in arguing that the publication and sale of QFL constitutes the unauthorized practice of law, relies on two Texas Court of Appeals cases, Palmer v. Unauthorized Practice of Law Committee, 438 S.W.2d 374 (Tex.App. - Houston 1969, no writ), and Fadia v. Unauthorized Practice of Law Committee, 830 S.W.2d 162 (Tex.App. - Dallas 1992, writ denied).
Palmer held that the sale of will forms containing blanks to be filled in by the user, along with instructions, constituted the unauthorized practice of law. The Palmer court observed that the form sold by Mr. Palmer was "almost a will itself" and that the form purported to make specific testamentary bequests. The court feared that the unsuspecting layman "by reading defendants' advertisements, by reading the will form, and by reading the definitions that are attached, ... [would be] led to believe that defendants' will 'form' is in fact only a form and that all testamentary dispositions may be thus standardized." Id. at 376. The Palmer court held that the preparation of legal instruments of all kinds involves the practice of law. Palmer at 376 (citing Stewart Abstract Co. v. Judicial Commission, 131 S.W.2d 686 (Tex.App. - Beaumont 1939, no writ)). The Palmer court further held that the exercise of judgment in the proper drafting of legal instruments, or even the selecting of the proper form of instrument, necessarily affects important legal rights, and thus, is the practice of law. Palmer at 377 (citing Cape May County Bar Ass'n v. Ludlam, 211 A.2d 780, 782 (N.J.1965) (per curiam)).
In Fadia, the pro se defendant sold and distributed a manual entitled "You and Your Will: A Do-It-Yourself Manual." The defendant in Fadia attempted to get around Palmer's conclusion that the selling of a will manual constitutes the unauthorized practice of law, by arguing that the court should reject Palmer in light of recent state court decisions requiring some form of personal contact or relationship between the alleged unauthorized lawyer and the putative client in order to violate the unauthorized practice of law statute. The court rejected the defendant's argument, stating that it would not overrule Palmer and if there were to be a pre-requisite of personal contact between the parties, such a change to the Statute would have to come from the legislature and not the courts. Fadia, 830 S.W.2d at 164. The Fadia court went on to hold that because a will secures legal rights and its drafting involves the giving of advice requiring the use of legal skill or knowledge, the preparation of a will involves the practice of law. Id. Since the selection of the proper legal form also affects important legal rights, the court reasoned that it too constituted the practice of law. Id. at 165. Therefore, since the will manual both purported to advise a layman on how to draft a will and selected a specific form for the layman to use, the court determined that the Defendant's selling of a will manual qualified as the unauthorized practice of law. Id.
As already mentioned, the Palmer court found that the preparation of legal instruments of all kinds involves the practice of law. Palmer 438 S.W.2d at 376. The Texas Supreme Court has since held that the mere advising of a person as to whether or not to file a form requires legal skill and knowledge, and therefore, would be the practice of law. Unauthorized Practice of Law Committee v. Cortez, 692 S.W.2d 47, 50 (Tex.1985).
Based on the interpretations of the Statute by the Texas courts, QFL falls within the range of conduct that Texas courts have determined to be the unauthorized practice of law. For instance, QFL purports to select the appropriate health care document for an individual based upon the state in which she lives. QFL customizes the documents, by adding or removing entire clauses, depending upon the particular responses given by the user to a set of questions posed by the program. The packaging of QFL represents that QFL will "interview you in a logical order, tailoring documents to your situation." Additionally, the packaging tells the user that the forms are valid in 49 states and that they have been updated by legal experts. This creates an air of reliability about the documents, which increases the likelihood that an individual user will be misled into relying on them. This false impression is not diminished by QFL's disclaimer. The disclaimer only actively appears the first-time the program is used after it is installed, and there is no guarantee that the person who initially uses the program is the same person who will later use and rely upon the program.
QFL goes beyond merely instructing someone how to fill in a blank form. While no single one of QFL's acts, in and of itself, may constitute the practice of law, taken as a whole Parsons, through QFL, has gone beyond publishing a sample form book with instructions, and has ventured into the unauthorized practice of law.
Parsons attempts to avoid the conclusion that it is guilty of the unauthorized practice of law by arguing that the Statute requires personal contact or a lawyer-client relationship. Parsons bases its argument first on the language of the Statute, which it contends requires that the prohibited services must be provided "on behalf of a client" in order to be the practice of law.
Even assuming that Parsons is correct that paragraph (a) of the Statute requires the prohibited services to be completed "on behalf of" a client, paragraph (a) of the Statute is not an exclusive definition of the unauthorized practice of law. Paragraph (b) of the Statute gives the Court the authority to determine that other acts constitute the unauthorized practice of law. Therefore, a judge could legitimately determine, under the authority granted in paragraph (b), that services provided to the public as a whole, as opposed to a singular client, qualify as the practice of law.
Next, Parsons argues that this Court should require a personal relationship between the party charged with the unauthorized practice of law and the party who benefits from the "advice" since this is the logic of almost every other court to consider the issue. (See Def's. Resp. to Pl's Mot. for Summ. J. at 6); see also, e .g., New York County Lawyers' Association v. Dacey, 283 N.Y.S.2d 984, 999 (N.Y.App.Div.) overruled and dissenting opinion adopted by, New York County Lawyers' Association v. Dacey, 234 N.E.2d 459 (N.Y.1967). However, as noted above, the pro se defendant in Fadia made this exact argument and the Texas Court of Appeals rejected it. Fadia, 830 S.W.2d at 164.
Nonetheless, Parsons contends that if the Texas Supreme Court were to consider the issue it would follow the lead of the other states. Although this Court is not Erie bound to follow the Fadia decision, it believes the Texas Supreme Court would find the Fadia decision a persuasive precedent. See Hall v. Dow Corning Corp., 114 F.3d 73, 77 (5th Cir.1997). For this Court to be the first to impose a new interpretation of a state statute which has been on the books in its current form since 1987, and some form since 1939, would fly in the face of generally accepted notions of federal-state comity. If Parsons believes such a personal contact requirement should be included in the Statute, it should address these concerns to the Texas legislature. It is not appropriate for this Court to be the first to read such a requirement into the Statute.
Parsons' arguments to the contrary notwithstanding, QFL is far more than a static form with instructions on how to fill in the blanks. For instance, QFL adapts the content of the form to the responses given by the user. QFL purports to select the appropriate health care document for an individual based upon the state in which she lives. The packaging of QFL makes various representations as to the accuracy and specificity of the forms. In sum, Parsons has violated the unauthorized practice of law statute.
C. Does the Statute Withstand Scrutiny Under the United States Constitution?
Having determined that the publication of QFL violates the Texas unauthorized practice of law statute, the Court must now examine whether applying the Statute in such a manner infringes upon the rights guaranteed by the First Amendment of the United States Constitution. The First Amendment is plainly implicated by the UPLC's desire to halt the sale of QFL in the state of Texas. While there is no right of unlicensed laymen to represent another under the First Amendment's guarantees of freedom of association and freedom to petition one's government, Turner v. American Bar Ass'n, 407 .F.Supp. 451, 478 (N.D.Tex.1975), Parsons' rights under the First Amendment's protections of a free press still apply.
1. Determining the Appropriate Level of Scrutiny: Content-Neutral v. Content- Based
The Court's initial First Amendment inquiry is to determine whether the Statute is a content-neutral or content-based restriction of speech because this answer will determine the level of scrutiny to which the Statute and its application will be subjected. If the Statute is determined to prevent speech based on its content, it is subject to strict scrutiny. If the Statute is merely a content-neutral restriction on speech, it is subject only to intermediate scrutiny.
The principal inquiry in determining content neutrality in speech cases is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). If the answer is "no," then the statute is content- neutral and subject only to intermediate scrutiny. The government's purpose is the controlling consideration in this inquiry. A regulation that serves purposes unrelated to the content of the expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Id., at 791.
Parsons vehemently asserts that the Statute's prohibition is a content- based restriction on speech. It bases this assertion, not on the general purpose of the Statute, but on the deposition testimony of the UPLC's designated representative that the UPLC would not prosecute Parsons for the publication of its non-legal software titles. (Def's Mot. for Summ. J. at 14 & Exhibit 2, pp. 75-76, 78-80). Thus, according to Parsons, since only its legal titles are subject to restriction, the Statute is based on the content of the software title, and therefore, the Statute is subject to strict scrutiny.
However, it is not what specific speech (or conduct) the Statute prohibits, but whether the government is evidencing a disagreement with the speaker's message, as well as the underlying purpose behind the statute, which determines content-neutrality. The mere fact that the Statute sanctions speech-based conduct does not make the Statute content-based. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) ("it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.")
The Statute at issue is aimed at eradicating the unauthorized practice of law. The Statute's purpose has nothing to do with suppressing speech. The UPLC's decision to challenge some of Parsons' software titles but not others has less to do with their content than with the likelihood that the title has possibly violated the unauthorized practice of law statute. Of course, the UPLC would not subject Parson's non-legal titles to scrutiny under the Statute, it is unlikely that the Life Application Bible engages in the prohibited conduct of practicing law without a license. Such discrimination between products does not evidence a disagreement with the message of Parsons' software.
There being no other arguments that the Statute is anything but content- neutral, the Court finds that the Statute is aimed at the noncommunicative impact of Parsons' speech, and therefore, is a content-neutral regulation which only incidentally affects speech and therefore is subject only to intermediate scrutiny.
2. Determining Whether a Content-Neutral Statute Overburdens Protected Speech Rights
Having determined that the Statute is content-neutral, the Court must still decide whether the Statute nonetheless overburdens protected speech. To make this determination, the Court subjects the Statute to intermediate scrutiny and the four part test of United States v. O'Brien, 391 U.S. 367 (1968). [FN8] Under O'Brien, the UPLC must establish that:
2) It furthers an important or substantial government interest;
3) The government interest is unrelated to the suppression of free expression; and
4) The incidental restriction of speech is no greater than is essential to the furtherance of that interest.
a. Is the Statute is Within the Constitutional Power of the State?
The first prong of O'Brien requires that the government have the constitutional power to enact the regulation in question. O'Brien, 391 U.S. at 371. Parsons does not dispute that the state of Texas has the power to prohibit the unauthorized practice of law. Therefore, the first prong of O'Brien is satisfied.
b. Does the Statute Further an Important Government Interest?
The State has a significant interest in regulating the practice of law and protecting its citizens from being mislead. The Supreme Court has said that states have a "substantial interest in regulating the practice of law within the State." Sperry v. Florida, 373 U.S. 379, 383 (1963). Therefore, the second prong of O'Brien is satisfied.
c. Is the government interest unrelated to the suppression of free expression?
A regulation satisfies O'Brien's third criterion if it can be justified without reference to the content of the regulated speech. J & B Entertainment v. City of Jackson, 152 F.3d 362, 376 (5th Cir.1998). This criterion is essentially no different than the initial test to establish if the regulation was content-neutral. Since the Statute can be justified on the need to prevent people who are not lawyers from giving legal advice and harming the citizens of Texas, the Statute satisfies the third prong of O'Brien.
d. Is the incidental restriction of speech no greater than is essential to the furtherance of the governmental interest?
A regulation satisfies the final prong, often referred to as "the narrow tailoring requirement," "so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." United States v.. Albertini, 472 U.S. 675, 689 (1985). The regulation must also "not burden substantially more speech than is necessary to further the government's legitimate interest." Ward, 491 U.S. at 799.
The version of the narrow tailoring requirement for intermediate scrutiny does not require the government to chose the "least-restrictive alternative" in achieving its interests. Ward, 491 U.S. at 798. Furthermore, a court should not invalidate the government's preferred remedial scheme because some alternative solution is marginally less intrusive on a speaker's First Amendment interests. Turner Broadcasting System, Inc. v. F.C .C., 117 S.Ct. 1174, 1200 (1997) (Turner II). A statute should be struck down under intermediate scrutiny only when a "substantial portion of the burden on speech does not serve to advance [the State's content-neutral goals]." Simon & Schuster v. New York Crime Victims Bd., 502 U.S. at 122 n.* (quoting Ward, 491 U.S. at 799).
While the Court recognizes that the issue is close, it is of the opinion that the Statute does not "substantially burden" more speech than necessary, and that the government's interest would be achieved less effectively absent the regulation. Absent the regulation, as it is being applied in this case, the State's ability to combat the unauthorized practice of law in the computer age would be hindered. The State possesses an interest in protecting the uninformed and unwary from overly-simplistic legal advice. The UPLC does not seek to prevent the simple provision of information concerning legal rights; rather, it seeks to prevent the citizens of Texas from being lulled into a false sense of security that if they use QFL they will have a "legally valid" document that's "tailored to [their] situation" and "best meets their needs." If the UPLC is prevented from prosecuting Parsons, the State's interests in preventing those who are not authorized to practice law from giving legal advice would be less effectively achieved. Additionally, while the Statute burdens some speech, that burden does not rise to the level of a substantial burden. Moreover, the burden which the Statute does place on speech is necessary to serve the State's legitimate content-neutral interests. Thus, the Statute satisfies the fourth prong of O'Brien.
Since the Statute meets all four of O'Brien' s requirements, it survives review under intermediate scrutiny. The Statute does not violate the First Amendment to the United States Constitution.
D. Speech Rights Under the Texas Constitution
Parsons also alleges that the UPLC's actions in enforcing the Statute against it violates Parsons' rights to free speech under Article I, Section 8 of the Texas Constitution. [FN9] It does not. Granted, Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992), requires a showing of immediate and irreparable harm before issuing an injunction. This test is more stringent than the test under federal law. However, the cases since Davenport have limited this higher standard under the Texas Constitution to cases which "have involved prior restraints in the form of court orders prohibiting or restricting speech." Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 434 (Tex.1998). Furthermore, the Fifth Circuit has refused to expand the Davenport's heightened standard outside of the narrow areas specifically addressed by the Texas Supreme Court, Woodall v. City of El Paso, 49 F.3d 1120 (5th Cir.1995), and the Court will not do so here. Furthermore, the UPLC has made a sufficient showing of immediate and irreparable harm to the citizens of Texas from the sale and publication of QFL that the heightened standard of Davenport has been satisfied.
Since the injunction this Court will issue will be limited to only Quicken Family Lawyer, version 8.0, and Quicken Family Lawyer '99, which have already been published, the injunction is not a "prior restraint," and the heightened standards of Davenport should not apply. "Not all injunctions that may incidentally affect expression are 'prior restraints." ' Madsen v. Women's Health Center, Inc., 512 U.S. 753, 763 n. 2 (1994). When an injunction issues "not because of the content of petitioners' expression ... but because of their prior unlawful conduct," it is not a prior restraint. Id.; see also Securities & Exchange Commission v. Wall Street Publishing, Inc., 851 F.2d 365, 370 (D.C.Cir.1988) (finding that the prior restraint doctrine is the wrong analytical framework if the injunction is imposed only after full judicial review on the merits). The injunction that will issue in accordance with this Memorandum Opinion and Order will not be the broad relief sought by the UPLC. [FN10] Rather, this Court will limit relief to enjoining the sale and distribution of Quicken Family Lawyer, version 8.0, and Quicken Family Lawyer ' 99 within the state of Texas.
E. Is the Statute Unconstitutionally Vague as Applied to Parsons?
Finally, Parsons challenges the Statute as being impermissibly vague as it is being applied to them. This challenge also fails.
Vagueness is a constitutional infirmity rooted in due process. "An enactment is void for vagueness if its prohibitions are not clearly defined." J & B Entertainment, 152 F.3d at 367 (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)); see also Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 525 (1994) (upholding federal drug paraphernalia law against a void-for-vagueness challenge). Vague laws are prohibited because they do not give citizens fair warning that their conduct is illegal. In determining whether a statute is vague, we view the law from the standpoint of a person of ordinary intelligence. J & B Entertainment, 152 F.3d at 367.
This Statute was challenged for vagueness in Drew v. Unauthorized Practice of Law Comm., 970 S.W.2d 152 (Tex.App.--Austin 1998, writ denied). Mr. Drew, a non-lawyer, had filed habeas corpus petitions on behalf of people who believed they had been denied their rights. An order was entered enjoining Mr. Drew from practicing law. On appeal, he challenged the Statute as being void for vagueness. The Court of Appeals concluded that "the statute is sufficiently specific as concerns the actions the court enjoined, including preparation of pleadings, giving legal advice, preparing legal documents, and attempting to appear before a judge on behalf of another." Id. at 155. This holding is consistent with every other court which has considered a vagueness challenge to a state's unauthorized practice law. See State v. Rogers, 705 A.2d 397, 401 (N.J.Sup.Ct.1998) (citing cases upholding unauthorized practice of law statutes against vagueness challenges); see also Lawline v. American Bar Assn. 956 F.2d 1378 (7th Cir.1992) (upholding against a vagueness challenge state ethical rule prohibiting lawyers from assisting others in the unauthorized practice of law).
While the Statute is not a model of clarity, "condemned to the use of words, we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110. The Statute and the surrounding case law set forth a core of prohibited conduct with sufficient definiteness to guide those who must interpret it. The Statute speaks of the preparation of a will or contract or other legal instrument as being potentially prohibited conduct. This should have put Parsons or anyone else who assists others in the preparation of a legal document on notice that they may run afoul of the unauthorized practice of law statute. Moreover, while Parsons may believe it to be wrongly decided, Fadia v. Unauthorized Practice of Law Comm., 830 S.W.2d 162 (Tex.App.-- Dallas 1992, writ denied), should have also placed Parsons on notice that in Texas the selling of forms, without more, may be considered the unauthorized practice of law. The acts prohibited by the Statute were sufficiently defined that Parsons had fair warning that the publication and sale of QFL was potentially illegal in Texas. Consequently, Parsons' claim that the Statute is unconstitutionally vague as applied fails.
Plaintiff's Motion for Summary Judgment is GRANTED. Defendant's Motion for Summary Judgment is DENIED.
Plaintiff will submit a proposed judgment conforming with this order.
Unauthorized Practice of Law Committee v. Parsons Technology, Inc.