Battle over divorce forms: Defining the contours of unauthorized practice of law

By Thomas Spahn The Daily Record Newswire Earlier this year, the Texas Supreme Court proposed making simple divorce form pleadings available to Texas residents. Not surprisingly, many Texas family lawyers have strenuously objected. The dispute is the latest in a continuing controversy about the extent to which the sale of such forms constitutes the "practice of law" and therefore violates unauthorized practice of law statutes. The unauthorized practice of law constitutes criminal behavior in most states, yet state bars have had a difficult time defining the "practice of law," and states vary widely in their definitions. Despite this difficulty, the stakes in unauthorized practice of law fights are high for lawyers and for society generally. As many folks have struggled during this recession, commentators have suggested that those needing simple legal documents could save money by relying on nonlawyers. An August 2011 Wall Street Journal column entitled "Time to Deregulate the Practice of Law" advocated for allowing nonlawyers to compete with lawyers in providing simple legal services. As the public debate continues, the market has in a sense already moved in that direction with the increasing use of inexpensive legal forms and software. It has always been nearly impossible to determine whether a nonlawyer's sale or use of forms constitutes the illegal unauthorized practice of law. Everyone seems to agree that a nonlawyer would be engaged in the unauthorized practice of law if he or she selects the correct form that a third party needs in a legal transaction, and then completes the form. But it also seems clear that a nonlawyer can help a third party by filling in a form that party selects, as directed by the third party (in essence, acting as a typist). For instance, a 2005 Virginia Unauthorized Practice of Law Opinion explained that a nonlawyer social worker would engage in the unauthorized practice of law by selecting a form for a litigant to use in small claims court, but could "assist the litigant with completion of the form document using language specifically dictated by the litigant." Virginia UPL Op. 207 (8/26/05). If the stakes were not so high, trying to draw this line could resemble a comedy skit -- with the social worker smiling or grimacing as he or she types up what the litigant dictates, using "body language" to steer the litigant in one direction or another. Even without the involvement of a human being, the public's use of forms can raise unauthorized practice of law issues. What if a member of the public simply buys a book at a drugstore, or purchases software to use on a computer, that walks him or her through the process of selecting and completing the proper legal form? Not surprisingly, the authors of such books and software argue that they are not practicing law, while bars and lawyers often argue to the contrary. This debate first rose to national attention in the 1960s, when nonlawyer Norman Dacey was convicted of a misdemeanor and faced jail time for publishing a book entitled "How to Avoid Probate." A New York appellate court eventually exonerated Dacey, and held that he had a constitutional right to publish such a book. Texas enjoined the sale of blank will forms in 1969. About 30 years later, the Texas Bar successfully argued that software entitled "Quicken Family Lawyer" violated Texas law. The latter victory was short-lived because the Texas legislature changed the law while the case was on appeal to the 5th Circuit. The latest, and perhaps the most widespread, skirmishes involve LegalZoom, a company that sells legal documents to the public. The company disclaims any intent to provide legal advice, but its software essentially mirrors what a lawyer would do in advising a client -- presenting various "decision tree" options and ultimately crafting a specific document providing what the customer needs. Bars in states such as Pennsylvania, Ohio and Connecticut have held that LegalZoom is engaged in the unauthorized practice of law. Other states, including North Carolina, initially resisted LegalZoom's activities, but have now abandoned that position. More recently a challenger dropped a lawsuit against LegalZoom, following what the company described as "multiple court decisions" in its favor. One historian has written that few states bothered enforcing unauthorized practice of law rules until the advent of the Great Depression, when lawyers pushed for such enforcement. Perhaps predictably, the Great Recession seems to be driving cost-conscious would-be clients away from lawyers again. The Texas dispute represents the latest battle in a long-standing war between the legal profession and those who seek to compete with it. ---------- Tom Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations. Published: Mon, Jul 30, 2012