The legal profession has been criticized for not keeping up with technological advances [1], arguably leading to less efficiency in the practice of law. Websites like LegalZoom.com and LegalAdviceLine.com are at the cutting edge of changing that. [2] While most law firms, especially those in large cities, have basic websites outlining the firm’s area(s) of expertise, displaying recent press releases, and even giving biographies of the attorneys in order to attract more business, some legal web pages have taken a more interactive approach. [3] These interactive websites offer a variety of “do-it-yourself” services, from answering specific legal questions, to incorporating a new business, to quickly producing documents such as basic contracts and wills at a fraction of the cost of obtaining a lawyer’s services. [4] While the thought of saving money on attorneys fees may initially seem attractive, and even though these websites are generally used for very basic legal needs, online legal aid may cross the line between self-help and the unauthorized practice of law. [5] The following article will discuss the inherent costs and benefits of having this form of legal advice available.
LegalZoom.com claims that it, in fact, is not offering legal services. [6] The fine (and gray, making it even harder to see) print on that website states that “the information provided in this site is not legal advice, but general information on legal issues commonly encountered. LegalZoom’s Legal Documentation Service is not a law firm and is not a substitute for an attorney or law firm.” [7] But just because this is what the website says, does that mean it is true? Is LegalZoom.com really not providing legal advice? The mere suggestion of this may seem somewhat laughable in that LegalZoom.com advertisements claim that its “services will save up to 85% of what an attorney would charge for performing the same service," [8] which is highly suggestive that the website is meant as a substitute for an attorney.
Before we can say LegalZoom.com and others have crossed a line , we must first determine what constitutes the unauthorized practice of law. According to Mark Yoccum, a Duguesne University Professor of professional responsibility, “most jurisdictions…have no definition of what it is to practice law,” and generally these kinds of situations are dealt with on a case-by-case basis. [9] While websites pose a seemingly new problem regarding the unauthorized practice of law, this situation is similar to form books, which may give people the information they need to draft their own contracts and other legal documents.[10] Books were ultimately found not to be the unauthorized practice of law by several courts, however, if the author were too include commentary discussing the material in the document, there may be a problem. [11] “Determining just what constitutes the unauthorized practice of law is a state to state issue” [12] so websites may be in trouble in one state, but perfectly within the rules in another. To be sure, there is no clear cut answer to whether websites constitute the unauthorized practice of law, but there are viable arguments on both sides, and case law is needed in this area to come to a definitive conclusion. [13]
To be sure, there are perks to legal services over the internet. The most obvious is that this will increase efficiency. [14] Rather that forcing clients come in and meet with an attorney face-to-face to discuss their legal issues, the internet provides a faster method of getting answers to legal questions. [15] Internet legal services also may lower the costs of legal services (due to the increase in efficiency), thereby increasing the number of people who have access to legal advice. [16]
The cons, however, are considerable. The most important is that the internet is very difficult to regulate and therefore the quality of legal services and advice may be compromised, leading to misguidance. [17] In the event that the legal advice obtained was false or misleading, a client may have missed the statute of limitations deadline, causing irreparable harm if the websites are not forced to answer, in civil court or before the appropriate bar association, for the error. [18] Also, when these kinds of websites are allowed to operate, who’s to say they will adhere to other professional ethics rules, such as those regarding confidentiality and the attorney-client privilege? [19] Without these guarantees, there cannot be as free of an exchange of information, and information the client may want to keep private may be revealed. There are also multi-jurisdictional complications – legal advice in one jurisdiction is not necessarily applicable in another, but the internet is available across all jurisdictions, leading to inevitable confusion if explicit disclosures are not made. [20] In addition “websites, form books and other instances of non-lawyers providing legal advice can lead to a lack of confidence [in the system].” [21] Lastly, it has been argued that “the real reason the practice of law needs to be regulated is to ensure independence of judgment. ‘The lawyer’s interest is your interest….that isn’t always the case if you are dealing with someone who isn’t a lawyer.’” [22] In essence, the oath lawyers take to do what is best for their client protects the client – if legal advice is accepted from those who have not taken that oath, those important protections are not in place.
So what should be done in light of the fact that legal websites are only gaining popularity, with legal professionals running to catch up? Perhaps internet and traditional legal services do not have to be at odds with each other. Indeed, they can coexist and even assist in each other’s prosperity. It is unclear at present whether every legal website is owned and operated by a licensed attorney. It is the opinion of the author that all websites offering any form of legal service should have a licensed attorney behind it and willing to accept the consequences for the business, including potential malpractice lawsuits. The lawyers running these websites should be held to identical standards to their brick and mortar counterparts, and should comply with all the model rules of professional ethics so as to create uniformity across jurisdictions. There is, of course, a multijurisdictional problem, because legal advice in one state may not be appropriate for those in another. In this case, legal websites must get an informed waiver from anyone using the service, to make them aware that legal advice is not “one size fits all” and must often be tailored to specific state law.
Another option has been presented by Robert Shapiro, founder of LegalZoom.com. [23] He has launched ProxiLaw.com, a website designed for use by licensed attorneys, which basically serves as an “invisible member of the attorney’s staff.” [24] The service provides basic services to enable attorneys to attend to their clients’ more complicated needs. [25] ProxiLaw.com is meant to serve as a “cost-effective and time-saving” tool to streamline the day to day practices of law firms. [26] This is an example of how traditional law firms and the internet can interact to foster a better, more efficient, and most cost-effective way of providing legal services to those who need it.
The internet presents unique problems related to the unauthorized practice of law. It will be interesting to see how the offering of legal services evolves via the internet, and whether future courts and bar associations will crack down on websites claiming that they are not offering legal advice. Indeed, regulation is needed to assure that quality legal services (provided by qualified individuals) are offered to those who seek it, but the internet offers new hope for efficient and cost-effective legal counsel – it is the wave of the future and, perhaps, a step in the right direction.
Sources
[1] Allen W. Chiu, The Ethical Limits of ELawyering: Resolving the Multijurisdictional Dilemma of Internet Practice through Strict Enforcement, 2004 UCLA J. L. & TECH. NOTES 1 (2004).
[2] Id.
[3] Id.
[4] Jason Green, Websites may Create Unauthorized Practice Questions, 9(14) LAWYERS J. 6, 6 (2007).
[5] See generally, id. (discussing the unauthorized practice questions that arise from legal websites); Catherine J. Lanctot, Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law, 30 HOFSTRA L. REV. 811 (2002). See also, MODEL RULES OF PROF'L CONDUCT R. 5.5 (2007).
[6] Green, supra note 4, at 6.
[7] Id. See also, LegalZoom.com Home Page,, http://www.legalzoom.com (last visited Feb. 5, 2008).
[8] Id.
[9] Id.
[10] Id.
[11] Green, supra note 4, at 6.
[12] Id.
[13] See id. ("To date…no complaints regarding the dispensing of legal services from the Internet have been made.").
[14] See West Group, Attorney Rober Shapiro Launches On-Demand Paralegal Service, 20(23) LAW P.C. 6 (2003).
[15] Chiu, supra note 1.
[16] Id.
[17] See Lanctot, supra note 5, at 840-41.
[18] See generally, id. (discussing that legal websites refuse to accept liability if someone uses their documents without consulting a lawyer).
[19] See MODEL RULES OF PROF'L CONDUCT R. 1.6 (2007) (discussing confidentiality).
[20] See generally, Kristine A. Moriarty, Law Practice and the Internet: The Ethical Implications that Arise from Multijurisdictional Online Legal Service, 39 IDAHO L. REV. 431 (2003).
[21] Green, supra note 4, at 6.
[22] Id.
[23] West Group, supra note 14.
[24] Id.
[25] Id.
[26] Id.