Tennessee and Washington Consider Regulations Restricting the Operations of Online Legal Document Preparers
by Madison Swanson
State bar associations continue to threaten the operations of online legal document providers under the guise of consumer protection through restrictive and unnecessary rules. The states of Washington and Tennessee have both considered resolutions that would impose expensive obligations and strict regulations on OLPs operating in their states.
Tennessee House Bill 1411, proposed in February 2019, states that online document providers are not considered to be practicing law so long as they follow the regulations laid out in the resolution. The regulations, however, were incredibly strict, expensive, and unnecessary. They would greatly raise the price the consumer pays for the same products and services. Thanks to pressure from Responsive Law and our allies, HB 1411 was withdrawn from consideration.
Amendments to General Rule 24 proposed by the Washington State Practice of Law Board (POLB), however, still stands and is open for comment until the end of August. The General Rules of the Washington State Bar dictate the general conduct of courts and lawyers, and Rule 24 defines the practice of law. This amendment, unlike HB 1411, doesauthorize the activities of online legal document preparers as the practice of law so long as they follow the regulations laid out in the potential new rule. The regulations the Washington POLB proposes are again unnecessary and would threaten the growth, profitability, and usefulness to the consumer of these document providers.
Read HB 1411 here and the GR 24 amendment here.
by Madison Swanson
Responsive Law recently participated in a working group to amend American Bar Association Proposed Resolution 10A, a set of best practices for online legal document providers (OLPs). In July of last year, the New York State Bar Association (NYSBA) proposed a set of crippling regulations for OLPs that was subsequently withdrawn after Responsive Law assembled a coalition of opponents to block the proposal. The NYSBA amended the resolution and proposed it again this past January, but Responsive Law still found many issues with the best practices the revised 10A promulgated. Therefore, we again mobilized our allies to oppose Resolution 10A.
In response to our opposition and the comments we submitted, the ABA convened industry and consumer groups and bar representatives to address outstanding issues with the Resolution. At this meeting, we made it clear what our main concern with this resolution was: many of the proposals created expensive and unnecessary obligations for OLPs that would raise the cost of the services that OLPs offer. The NYSBA and the ABA claimed that the best practices in Resolution 10A would protect consumers. In reality, they would negate the major advantage of OLPs, which is to increase access to understandable and affordable legal tools.
Overall, Responsive Law is pleased with the changes that were made to Resolution 10A during the working group process. Many of the superfluous regulations that would have increased the cost of using OLPs were stricken and many of the remaining best practices create advantages for the consumer. Our work, however, is not done. Not only are there several outstanding issues, but Responsive Law takes issue with the premise of the resolution. We do not believe that the ABA, a trade organization, should be promulgating best practices for its competitors.
Proposed Resolution 10A, with the changes made during the working group process, will be presented again to the ABA House of Delegates in August 2019.
by Tom Gordon
A set of proposed best practices for online document preparation software is scheduled to be voted on by the American Bar Association House of Delegates at the ABA Midyear Meeting on Monday.
Responsive Law has submitted comments to the ABA opposing the proposal. Many of the proposed practices would add unnecessary features—and costs—to an industry that is based on providing streamlined services when a lawyer is either unaffordable or just unnecessary.
Beyond our substantive objections, we find it troubling that the trade association for lawyers is trying to regulate (or even suggest regulations for) non-lawyer businesses that are not engaged in the practice of law. As we point out in our comments, it's as if the Alliance of American Automobile Manufacturers set forth best practices for bicycle manufacturers that included safety features that would exponentially raise the price of bicycles. Such a move would be seen, at best, as an misguided attempt to make bicycle riders safer that would backfire by denying most people access to bikes. More likely, it would be seen as a clumsy attempt by the auto industry to beat a competitor through regulation.
I'll be attending the ABA's meeting to try to convince members of the House of Delegates that this proposal is both misguided and inappropriate. Watch this space for further updates.
RI Supreme Court to Responsive Law: Please File a Formal Motion Asking Permission to File Informally
by Tom Gordon
In Rhode Island, the state’s Unauthorized Practice of Law Committee—which consists of thirteen lawyers and one member of the public—recently declared that lawyers were required for real estate closing duties traditionally (and competently) performed by real estate agents. Of course, requiring a lawyer for these transactions does nothing to protect the public, but it does add to the already high cost of purchasing a home.
by Tom Gordon
The MacArthur Foundation has announced the recipients of its 2018 MacArthur Fellowships, popularly know as “Genius Grants.” Among them is Rebecca Sandefur, a professor at the University of Illinois and a Faculty Fellow at the American Bar Foundation. She’s also a member of our Policy Advisory Board.
Professor Sandefur’s work has focused on both quantitative and qualitative research of the civil justice system, providing great insight into the nature and extent of the shortfalls in providing access to justice that Responsive Law is attempting to remedy. The MacArthur committee notes that her work shows that “in most cases, the advantage of a lawyer relative to a lay person resides in an ability to navigate procedures and rules rather than in deep knowledge of the law. Her observations have led to the hypothesis that the gap in access to civil justice might be closable without lawyers.”
The MacArthur committee concludes its citation of Professor Sandefur by pointing out that she “is providing the empirical evidence necessary to guide and implement wide-scale reforms to address the civil legal needs of low-income people.” It’s actually not just low-income people, but people from across the economic spectrum that would benefit from reforms based on her work. Congratulations to Professor Sandefur on a well-deserved honor! I’m looking forward to more of her insightful work in the years to come.