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UPL suit against LegalZoom must go to arbitration, Arkansas Supreme Court says

Oct 24, 2013, 12:03 pm CDT

Comments

I guess I will need to read the details to further understand how preparing documents amounts to the unauthorized practice of law.

Here they have a service to help those who cannot afford a lawyer and I hope that these litigation’s don’t destroy a good thing for most people.

By concernedcitizen on 2013 10 27, 3:45 am CDT

Concerned Citizen - “Preparing Documents” is what lawyers do and what lawyers are needed to do.  Beyond the fact that just knowing which form to use often requires legal training to get it right, knowing what should go in the blanks requires legal knowledge to ensure the document will do what the client wants done.  Not to mention counseling as to whether what the client thinks they want to do is in the client’s best interest.  I have seen enough “Fill in the Blank”  wills and trusts that completely screw up an estate and cost thousands to undo to know that people would be better off with nothing rather than putting a list of blank forms in front of them. 

Something like handing out blank prescription medicine forms - after all, the doctor is just preparing a document.

By DLB on 2013 10 30, 9:18 am CDT

Preparing and drafting legal documents, in many states, including Ohio, is the practice of law.  Apparently you have never had a client who was harmed by using an improper, or incorrect, form that was either poorly drafted or poorly chosen from one of these websites.  A poorly drafted $100 document now can cost you tens of thousands of dollars later.  I’ve seen it.

By ConsumerLawyerOH on 2013 10 30, 9:18 am CDT

I haven’t seen a good one yet. Was on Rocket Law yesterday because client wanted me to review its version of a pre-nup. Total garbage, but those who use them won’t know until it’s too late.

By Russell on 2013 10 30, 9:58 am CDT

“...who paid $98.95 for a last will and testament.”  He probably got mad after he found the same form available for free on a state government website.

By Smeliot on 2013 10 30, 10:06 am CDT

You are free to engage a lawyer in drafting your will, but also have the perfect right to do it yourself without the assistance of counsel.

One person sells a form book that you can purchase at Amazon.com or check out from your local library if they have a copy. Another person sells software with legal forms, which you can also buy at Amazon.com.

What’s the difference? Where in either case is the practice of law? If you bought the software, and now want your money back plus no doubt some unspecified damages, who exactly is practicing law without a license? You?

By Charles on 2013 10 30, 11:15 am CDT

Attorneys love these self-help instrumentalitities.  What we lose in up-front fees is more than comoensated for when we have to litigate the problems they create for many users.

By lawsailor on 2013 10 30, 11:26 am CDT

I have seen three instances of internet document preparation without benefit of counsel.
1.  Husband & wife got their wills written, took them to a local business where they signed, the witnesses signed & the notary notarized.  Only problem was he signed her will and she signed his and he was deceased when she came to see me. I do not believe this problem can be solved.
2.  A father nearing the end of his life got an internet will or maybe his son got it for him with the son as the sole devisee.  The son arranged for it to be signed before 2 witnesses & a notary.  Only problem was the son signed as a witness. In Texas that voided any provisions passing property to the son.  Luckily he came to me the day after & I was able to advise him to get the will re-executed & solved the problem.
3.  A will executed in Colorado by a husband & father left everything to his wife & child.  Wife and child were the witnesses.  In Texas they could not inherit under the will but Colorado law allows it.  Problem is Texas does not and he was attempting to dispose of Texas real estate. The solution is that Texas probably will recognize it as it was probated in Colorado and offered for ancillary probate here in Texas.
All of these problems would probably not have occurred if a lawyer had been involved.

By Curtis Bonner on 2013 10 30, 12:00 pm CDT

It is about time this issue was raised.  The legal professions has a monopoly, and overcharges in many actions.  They can place liens on judgments if they drop a client.  this results in the inability to get another lawyer.  The Courts usually set the maximum fees for contingencies and lawyers use these maximums rather than tell their clients that they can negotiate for a lower fee.  When a lawyer refers a case to another lawyer with a specialty, they frequently get a 25% fee of all fees that the specialist lawyer receives.
    My smell test indicates that this is a monopoly and it is out of control.  At one time, you did not have to go to an ABA approved law school.  Most states will not let you take their bar exams if you have not graduated from an ABA school.  The practice of law is frequently controlled by the state bar and this organization is protective of both lawyers and judges. 

  For those who are document preparers, or paralegals:

Start putting arbitration clauses when you assist someone in filling out papers!
The ARk. SC with dissent, determined that once there is an arbitration clause the charges of UPL must first go to arbitration.  I have not reviewed the law but will sometime in the future. 
  If one of the largest providers does this, then the law should apply to all others.  As an example, if anyone is charge with UPL, I would join as one of the defendants any of the legal software vendors as a co-defendant.  That would require the bar, or the AG, or any other government to go after about 30 software vendors. 
  Those who publish will maker software, my attorney, bankruptcy stuff, tax returns if this is considered law.  .....

By publius on 2013 10 30, 2:25 pm CDT

Hmm, good comments, all… and I would add that an arbitration clause is not likely to deter an unhappy consumer from reporting to the local D.A. in states where UPL is a criminal offense, or the state bar’s disciplinary body where the purveyor disingenuously advertises attorney oversight. We generally think of access to legal represntation as a problem for low-income clients (some of whom we are able to help with free legal aid), but estate planning is one of those issues where the middle class is particularly vulnerable. They can hire counsel, albeit somewhat painfully, so often choose not to. However, if they understood the true stakes and the issues than can arise, probably most would opt for personalized professional advice.

I’ve seen a lot of web purveyors, $10 jewel-cased disks, and even store front “Legal Forms” businesses offering to fix you up with a quick-and-cheap will, but not one has mentioned that perhaps non-probate transfer arrangements would be better than a will. Thus, it’s a fair criticism that these quasi-legal services do actual harm by lulling the testator into a false sense of security.

So the answer to the question of whether non-attorney form filling serivces really serve a consumer interest is…. well, it depends. You don’t have to be a lawyer to become knowlegeable about testamentary transfers, and many consumers will self-educate on such important matters as their estate planning.  Arguablly, those folks should be able to purchase the minimal level of service that meets their needs. But in my humble opinion, any purveyor of forms that “purport” to accomplish an estate plan should be required by law to at least caution the purchaser that estate planning is legally complex and is best done with the aid of counsel.

By CaseFiler on 2013 10 31, 6:27 am CDT

LegalZoom seriously downplays the art of meaningful estate planning and financial strategy. I seriously doubt LegalZoom gives advice as to the tax ramifications and/or potential litigation their generic forms trigger.

I have a case right now involving a LegalZoom debauchery. Father has two sons; father does LegalZoom will in his own privacy, obtains no witness. Will’s provisions read one son (my client) to take everything, including a home, land, car, and bank account. The other son was expressly disinherited by the will’s writing. Probate Court dismissed the will as non-valid, the sons now share the estate property fully and equally. Thanks LegalZoom.

By RLB on 2013 10 31, 9:25 am CDT

All good points.  We have all had to deal with “form” cases.  The earlier point made is the best.  Just because we “can” do something, doesn’t mean we should.  I’m a lawyer with a MBA.  I can do my taxes, but I chose to pay a CPA to do them, because there is a lot about taxes I do not know.  Likewise, if we should all be free to fill in the blanks, then why can’t I prescribe my own medication? Why can the state inspect my car and plane yearly, to determine whether they are safe. The State Bar regulates how I practice law and what I advertise I can do for people.  These “form providers” are not lawyers and thus they are not regulated.  Much of what they do would be illegal for a lawyer in Texas.  Poor people are being duped into paying for cheap forms, with the belief “this will cover it.”  Like any other profession or service provider, the value is in the advice and knowledge, not in just the paper.  It cost 10 cents to turn a screw on a million dollar machine, the value is knowing what screw to turn.

By Law Of Texas on 2013 10 31, 11:11 am CDT

@10 “and I would add that an arbitration clause is not likely to deter an unhappy consumer from reporting to the local D.A. in states where UPL is a criminal offense”

That’s a good thought, but I don’t think that it will do any good.  For several years I was a member of the Consumer Protection Committee of the Minnesota State Bar Association.  Among our functions was investigating allegations of UPL.  Our only recourse was to refer violations to the local prosecutors.  The most common problem reported to us was nonlawyers “helping” people with their divorces.  In one case we even had a letter from a judge begging us to do something about one of these guys because of how badly he had messed up the lives of his “clients.”  The prosecutors uniformly declined to prosecute perceiving other matters as more important.  We eventually disbanded the committee because we realized that we were wasting our time.

By MN Attorney on 2013 10 31, 11:33 am CDT

“who paid $98.95 for a last will and testament. He claimed the company’s unauthorized practice of law amounted to a violation of the state’s deceptive trade practices law, and the company was unjustly enriched by charging for conduct that is “per se illegal.”

My biggest problem, here, is that this appears to be a case where the plaintiff is not a true consumer, but rather someone who purchased the will in order to become a class action plaintiff.  No one who voluntarily pays less than $100 for a will then turns around and thinks to himself, ‘heck, what they just sold me is a deceptive trade practice and amounts to unjust enrichment. . . . ’  And how much do you want to bet that this purchaser isn’t just looking for his money back—he’s looking to profit from his “service” as a named class action plaintiff.

By CT on 2013 10 31, 2:30 pm CDT

I live in Florida where UPL appears to be criminal.  However, the executive director of the Florida Board of Bar Examiners is not a lawyer.  She writes letters that clearly interpret both rules and law. 
    Once you have laws that are applied selectively, you have no rule of law.  Obviously, any experienced lawyer knows that many lawyers violate the RPC (Rules of Professional Conduct) and do nothing.  Judges almost never report lawyers for violating rules and the bar and judges in many states do not allow a cause of action against lawyers who violate RPC.
    In one instance, I reported both lawyers and judges to the respective disciplinary body, and the complaints were dismissed.  It is time to change the way we view members of the judiciary and also the legal profession and make them accountable to the public. 
    At one time, individuals were able to bring actions before a grand jury, however, today, many states have taken that right away and only prosecutors or states attorney generals can bring actions before the Grand jury.  We all know that prosecutors are political animals and generally know that their careers will not advance if they went after members of the legal profession.
    REcently, there have been reviews of Gideon and the failure to grant competent counsel to those who cannot afford attorneys.  I read the CLE’s from Kentucky and was happy to see that some bars are concerned about unequal justice under the law.
      I find it disturbing when I go to watch criminal courts and see many nolos when pleas are made for possession of unlawful drugs. Marijuana possession even in small quantities results in significant fines and legal bills.  I can understand that courts and municipalities do not want to legalize some drugs because prosecution leads to a stream of income for local communities. 
      It is time to look at our laws and how they are enforced otherwise more and more citizens will begin to question if there is any rule of law.

By publius on 2013 10 31, 8:35 pm CDT

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