Written by Tom Gordon
In an ongoing battle over whether LegalZoom is engaged in the unauthorized practice of law in Missouri, a federal district court has rejected a motion by LegalZoom to declare that it is not engaged in UPL. This means that it will be up to a jury to decide whether consumers in Missouri will have access to LegalZoom's services.
This decision is troubling on several counts. First, part of the basis for the court's decision is the fact that the programmer of LegalZoom's software is not a licensed Missouri lawyer. If this is relevant to a finding of UPL, then publishers of self-help books could face similar lawsuits for UPL. LegalZoom's software behaves very much like a self-help book that includes forms with instructions to complete them. It merely automates what would be a lengthy series of written steps for a person without computer assistance to follow. Theoretically, a person using the software could complete forms by following each of the steps in the computer program without the assistance of software. If the definition of practice of law is predicated upon whether the self-help process is accelerated--without otherwise being changed- through computer automation, then consumers will have access only to slower, clunkier self-help assistance.
Another troubling element of the court's decision is its reliance on the human element in LegalZoom's services as part of its analysis of whether LegalZoom engaged in UPL. Specifically, the court calls out human-delivered services such as "review[ing] the data file for for completeness, spelling and grammatical errors" and "correcting word processing 'widows,' 'orphans,' page breaks, and the like." When I was in law school, my legal writing classes never included a lesson entitled "Widow and Orphan Control, Page Breaks, and the Law." Providing these services is the practice of copyediting, not the practice of law.
Of course, the most troubling aspect of this whole case is that, as the court acknowledges, the plaintiffs have neither asserted that they believed LegalZoom was acting as a lawyer, nor that the forms they created using LegalZoom were deficient in any way. If UPL restrictions exist to protect consumers, and not to protect the bar from competition, then consumer harm should be a necessary element of any UPL complaints. We hope that the twelve men and women who will now decide this case will apply a "no harm, no foul" standard to preserve affordable access to self-help assistance for Missourians.
Tom Gordon is Executive Director of Responsive Law.