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year, the New York State Bar Association (NYSBA) proposed a set of crippling regulations for OLPs that was subsequently withdrawn after Responsive Law assembled a coalition of opponents to block the proposal.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.
Responsive Law successfully lobbied for some of the most important changes
Our main concern with the resolution as it previously stood was costs. The unnecessarily high standards the resolution put forth would greatly increase the cost to the consumer, therefore negating the affordability of OLPs. Our main goal in this working group was to amend the regulations that imposed strict responsibilities on OLPs, the cost of which would be pushed onto the consumer. We were able to convince the NYSBA to remove most of these needless yet costly regulations.
The first draft of 10A required that all OLPs utilize “best of breed” data security practices. This language was concerning because it could be interpreted to mean that OLPs would be required to use national security level encryption and data protection, the costs of which would be astronomical. Reasonable or industry-standard levels of security would meet the needs of the consumer just as well as state-of-the-art security technology. Furthermore, this standard far surpasses that which lawyers are held to. We were able to convince the ABA that this clause could be stricken.
We also found issue with a regulation that OLPs retain customer information and completed forms for three years after being created by the consumer. Maintaining this information would not only impose high storage costs, but compromise security for a task that is completely unnecessary. Lawyers themselves are not required to retain customer records for this long, so it seems nonsensical that OLPs should be made to do so. The ABA heard our concerns and struck this clause.
Finally, unnecessary and costly obligations were again imposed on OLPs through a stipulation that required that OLPs provide their consumers with information on where to find affordable lawyers. Responsive Law does not believe that this should be the duty of document providers, whose purpose is to help consumers avert lawyer fees when the aid of a lawyer may be unnecessary or unaffordable. Successful lobbying efforts resulted in the ABA striking this clause as well.
Overall, Responsive Law was pleased with the progress that was made during the working group process and the new Resolution 10A is much less problematic than it was before.
The resolution still applies different standards to OLPs and lawyers
Despite this progress, issues in Resolution 10A still persist. The standards that the resolution seeks to hold OLPs to are, on the whole, far more stringent than the standards that the ABA holds lawyers to.
One regulation that will remain in the resolution compels OPLs to utilize easily understandable language for all important information regarding their products. While Responsive Law is actually in support of this obligation, we would like to note the irony that lawyers are not required to do this when communicating with their clients!
Amended Resolution 10A requires that OLPs notify their customers that they are not a substitute for a lawyer and bars OLPs from using misleading advertising that may convince a consumer that the service is a substitute for formal legal consultation. However, claiming that one product is a substitute for another is not the same as claiming that they are equivalent. Someone may prefer to bike to work, but on a rainy day, she may drive her car. A bike and a car are not equivalent, but one can be substituted for the other depending on what best suits the situation. OLPs should not be required to urge their customers towards formal legal services when their online document service could serve that consumer just as well at a fraction of the price. The bar has never required lawyers to warn their customers before consultation that an OLP could be just as effective of a method for resolving their legal issue. This stipulation is inequitable and unnecessary.
Regardless of the contents of the Resolution, Responsive Law has a fundamental issue with the ABA’s regulation of OLPs. The ABA is a trade organization, and we do not believe that it is best suited to regulate its competitors. While we are ambivalent towards the Resolution as it stands, many of the best practices that have been suggested throughout this process were thinly veiled attempts to limit the growth and profitability of the OLP industry. We would like to see the ABA focus on how lawyers can best meet people’s legal needs rather than restricting the operations of affordable alternatives.
Madison Swanson is a Responsive Law intern.