1999 B.C. Intell. Prop. & Tech. F. 031701
Don't Try This At Home: Texas Suppresses Do-It-Yourself Legal Software

Joe Desmond and Josh Dorchak, Staff Writers

A District Court in Texas has dealt a blow to "do-it-yourself" legal software by holding that the sale of Quicken Family Lawyer violates a Texas statute forbidding the practice of law without a license. The decision should soon be followed by an injunction banning the sale of Quicken Family Lawyer in Texas.[1]

Judge Barefoot Sanders granted summary judgment in January in favor of Texas' Unauthorized Practice of Law Committee ("UPLC"), a group of six Texas lawyers and three lay citizens appointed by the Supreme Court of Texas to enforce Texas' unauthorized practice of law statute. The UPLC brought suit against Parsons Technology, Inc. ("Parsons"), maker of Quicken Family Lawyer ("QFL"). [2] Parsons did not dispute that it is not licensed to practice law in Texas.

The Texas statute defines the "practice of law" as: (a) The preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. (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. [3]

The Texas Court found that QFL offers over 100 different legal forms, ranging from employment agreements to premarital agreements to forms for wills. The Court further noted that the QFL program will interview the user and recommend forms based on the answers. A separate feature, called "Ask Arthur Miller," allows the user to enter legal questions and then view a video response from the noted attorney. The program advises the user that it tailors its forms to the user's state of residence, adding and deleting the appropriate clauses.

The Court noted the minimal cautionary language displayed to the user, and noted the lack of accessible disclaimers. A disclaimer, which warns the user that each situation requires a unique approach and that the program only provides non-specific information, appears upon installation of the program, but never after that, and it is not printed on the product's packaging. The disclaimer is only accessible via the help menu after start-up.

The Texas District Court followed a series of precedents that drew a tight ring around the definition of what constitutes the lawful practice of law. Two Texas Appellate Court decisions, Fadia and Palmer , had enjoined the sale of fill-in-the-blank forms intended to help draft a will. [4] The Court reasoned in those cases that even the selection of a form to use for a will involves the giving of advice requiring legal skill or knowledge, and thus qualifies as the unauthorized practice of law. The plaintiff in Parsons , as in Fadia , argued that the statute presumed a prerequisite of personal contact between the parties to the transaction, but the Court rejected that interpretation. Texas courts have held that even telling someone a certain form needs to be filed is to be considered the giving of legal advice. [5]

The "unauthorized practice of law" is both defined and regulated at the state level, typically by statute, with the courts enforcing and the state Bar Association or some other statutorily created Committee advising or even investigating. All states prohibit, in theory, the unauthorized practice of law; punishment for a violation typically takes the form of an injunction, sometimes with a fine or disgorgement of any fees collected.

The easy case is charlatanism: no state will tolerate a non-licensed "lawyer" holding him- or herself out to be one; even affecting an "Esq." after one's name may constitute this kind of fraud. [6] Nor will any state allow a non-lawyer publicly to represent anyone but him- or herself. However, when it comes to a non-lawyer's bona fide advice in a legal context, the states are split, and may be grouped according to how broadly they construe the "practice of law" itself. Providing do it yourself forms or "kits," most often in the realms of bankruptcy, real estate, divorce and probate, makes for a borderline case. [7]

Texas, as the Parsons case indicates, is in the least permissive group of states --- especially since Texas courts have twice vindicated the open-ended language of the Statute. Palmer , followed in Parsons , held that simply providing some legal forms (wills, but not deeds) constitutes the practice of law. In New Jersey too, simply selecting or suggesting a specific form for another person is practicing law. [8]

At the other end of the spectrum are those states, like New York, which hold that the practice of law requires active, interpersonal advice, that is, a "personal 'attorney'-client relationship." In these states, providing forms and kits, even those accompanied by advice on how to fill them out, is not, per se, the practice of law. [9] In Massachusetts, helping another person fill out forms with legal consequences is not the practice of law, as long as the forms are relatively "simple" and their filling out is "incidental" to an activity not itself wholly a matter of law. [10]

The majority of state courts strike a balance between these extremes, holding that: providing forms, or performing notary or "scrivener" services (as directed by the "client") is lawful, even helpful; but a non-lawyer may not add instructions or advice --- even on how to choose, fill out or file the form. In these states, a do it yourself "kit" that contains something more than blank forms or templates would typically be found unlawful. [11]

These standards are bad news for providers of do-it-yourself legal software: the more helpful the product is - the more tailored to the user and easy to use - the more likely it is to offend an unauthorized practice statute. Since Texas is strict in these matters, it is unsurprising that Parsons , the first case to treat providing software as the "practice of law," was decided there. [12] But providers of such software, if prosecuted, are likely to meet with injunctions in all but those few states, like New York, that require a "personal attorney-client relationship." (And even in those states, features like "Ask Arthur Miller" may be flirting with accusations of a "virtual relationship.")

The usual criticisms leveled against unauthorized practice laws --- for example, that they are unrealistic and self-serving, made by lawyers protecting their turf at the expense of those who cannot or wish not to pay their fees; or that laypersons often give better advice than lawyers --- certainly hold true as to do it yourself legal software. But these criticisms have convinced neither courts nor legislatures to undo or even liberalize the law. [13] It may be that the ever-increasing availability and convenience of legal assistance in software form may add impetus to the deregulation movement. But for the time being, any legal software offering more than a static service - i.e., any such software worth buying - runs the risk of being barred from sale in most states.


Footnotes:

[1] Unauthorized Practice of Law Committee v. Parsons Technology, Inc., 1999 WL 47235 (N.D. Tex., Jan. 22, 1999) (Civ.A. 3:97CV-2859H) (slip op.).

[2] The opinion states that Parsons also manufactures TurboTax and Quicken financial software. This is incorrect. Parsons is a subsidiary of The Learning Company, and merely licenses the registered trademark "Quicken" from Intuit, Inc., which publishes Quicken financial software and TurboTax.

[3] Tex. Gov't Code ▀ 81.101 et seq. (Vernon's 1998).

[4] Fadia v. UPLC, 830 S.W.2d 162 (Tex. App.Ct. 1992); Palmer v. UPLC, 830 S.W.2d 374 (Tex. App.Ct. 1969).

[5] UPLC v. Cortez, 692 S.W.2d 47 (Tex. 1985).

[6] See Patton v. Scholl, 1998 WL 779238, p. 6-7, 10 (E.D. Pa. 1998) (No. 98-MC-153) (slip op.).

[7] For survey of state decisions, see, e.g., Patricia Jean Lamkin, Annotation, Sale of Books or Forms Designed to Enable Laymen to Achieve Legal Results Without Assistance of Attorney as Unauthorized Practice of Law, 71 A.L.R.3d 1000 (1977; Aug. 1998 Supp.); Paul D. Healey, Note, In Search of the Delicate Balance: Legal and Ethical Questions in Assisting the Pro Se Patron, 90 L. LIBR. J. 129, 138-41 (Spring 1998); Meredith Ann Munro, Note, Deregulation of the Practice of Law: Placenta or Placebo?, 42 HASTINGS L.J. 203, 210-11 (Nov. 1990).

[8] Parsons, supra note 1; Palmer, supra note 3; Cape May County Bar Ass'n v. Ludlam, 211 A.2d 780, 782 (N.J. 1965).

[9] The classic New York cases are New York v. Winder, 348 N.Y.S.2d 270 (N.Y. App. Div. 1973) ("Do It Yourself Divorce" kits); New York County Lawyers' Ass'n v. Dacey, 234 N.E.2d 459 (N.Y. 1967) ("How to Avoid Probate" book).

[10] See, e.g., Lowell Bar Ass'n v. Loeb, 52 N.E.2d 27 (Mass. 1943); In re Lyon, 16 N.E.2d 34 (Mass. 1938); see also In re First Escrow, Inc., 840 S.W.2d 839 (Mo. 1992); Oregon State Bar v. Gilchrist, 538 P.2d 913, 919 (Or. 1975).

[11] See, e.g., In re Anderson, 79 B.R. 482 (S.D. Cal. 1987); State Bar v. Cramer, 249 N.W.2d 1 (Mich. 1976); Florida Bar v. Stupica, 300 So.2d 683 (Fla. 1974); State Bar of Nevada v. Brandon (Clark Cty. Dist. Ct. 1972), reported in 37 Unauthorized Practice News 37 (May 1973); Shortz v. Yetter, 38 Pa. D. & C. 291 (1940); People v. Bennett, 74 P.2d 671 (Colo. 1937).

[12] Two pre-Parsons cases dealt with software indirectly, both finding that an unauthorized advisor who used legal software in advising customers on filling out forms could not slough off his liability onto the software. See Patton, supra note 5, at p. 13; In re Kaitangian 218 B.R. 102, 110 (S.D. Cal. 1998).

[13] In 1987, a "Public Protection Committee" created by the California Bar concluded a survey of the usefulness and effectiveness of lay practitioners of law by recommending that the State abolish its prohibition on the unauthorized practice of law entirely: this has had no effect whatsoever. See Munro, supra note 6, at 205.



RELATED LINKS:
Unauthorized Practice of Law Committee v. Parsons Technology, Inc., 1999 WL 47235 (N.D. Tex., Jan. 22, 1999) (Civ.A. 3:97CV-2859H) (slip op.).
Quicken Family Lawyer '99 (visited Mar. 11, 1999) .
Texas and QuickenĂ Family LawyerĂ (last modified Feb. 19, 1999) ("itslegal.com" is a Parsons web site used to advertise QFL and related products).

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