As a result, an industry specializing in pre-printed legal forms for things like quitclaim deeds, wills, and uncontested divorces has popped up. These forms have been available in office supply stores for years, but the Internet has really let the industry take off, with companies allowing consumers, for much less than a lawyer would charge, to simply plug their information into a website, pay the fee, and receive a printed copy in the mail, or print it themselves. At that point, they usually just have to sign the documents, and maybe have them notarized.
This is a pretty sweet deal…assuming that the results are always flawless. A recent story in the New York Times, however, shows that this is not the case. The author tested out 4 popular online services for drafting legal documents. She used each one of them to draft a will, and then had an experienced estate planning lawyer go over them. The lawyer found holes in every one of the documents, though found that 3 of them were good enough that they probably wouldn’t cause any major problems. But the last line of the story really sums up the problem – a layperson probably doesn’t know enough about the law to spot the holes in these cookie-cutter legal documents, and they don’t know what to look for. Essentially, they don’t know what they don’t know.
Barring some fundamental remaking of our legal system, people are always going to make wills, get divorced, file for bankruptcy, and apply for trademarks, among other things. And some might argue that many attorneys charge far too much for these relatively simple tasks, considering the amount of work they require. In this economy, the opportunity to get the same results at a fraction of the price is more tempting than ever.
However, if there are any significant problems with a legal document, the long-term cost can be much greater than what it would have cost to hire a lawyer in the first place. Consumers will either find their intentions completely frustrated because a will, or other legal document, turns out to be invalid, or they’ll have to hire a lawyer to clean up the mess.
This possibility, and the fact that some people believe that they’ve already been harmed by using such documents, has led to a class-action lawsuit against LegalZoom, the biggest player in the industry, alleging that it has engaged in the unauthorized practice of law. To an outside observer, this could look a lot like an entrenched, protectionist, change-averse profession trying to stamp out competition and stifle innovation. I can’t read minds, so I don’t know the motivations of the lawyers in this lawsuit, but I wouldn’t be surprised if they were motivated, in part, by self-interest.
But if the case has merit, so what? After all, lawyers have to put food on the table, just like everyone else. Now, I’m not saying that they, or members of any other profession, have a right to do this by stifling legitimate competition, but if their clients have legitimate claims, the fact that the outcome sought by the plaintiffs might be beneficial to the legal industry should not be relevant.
What is relevant is the question of whether or not these services engage in the unauthorized practice of law. And that’s a tough question. Basically, if you provide legal advice, you are practicing law. If you provide legal information, you’re not.
The differences between these two concepts are subtle, but crucial. Legal information is simply telling a person what the law is, and then leaving the recipient of the information to decide what they want to do with that knowledge. Legal advice, on the other hand, goes a step further. It involves telling the recipient what the law is (or simply knowing what the law is), applying it to the recipient’s unique factual situation, then telling them what they should do.
Do pre-printed legal forms count as legal information, legal advice, or something else? An argument can certainly be made that these forms do constitute legal advice – they involve the synthesis of many different laws into a usable document, applicable to a person’s particular factual situation.
Of course, it could also be argued that these documents are just statements of what the law is, leaving the purchaser to make their own decisions based on that information. Whatever the case, we should find out fairly soon, when this case is resolved.
But in the meantime, what should we take away from this? Well, if you have a fairly simple legal problem, and want to solve it as cheaply as possible, ask yourself: what would it cost me if I did every single thing wrong in solving this problem, and the exact opposite of what I intended came to pass (we’ll call this “A”)? Then you should look at what it costs to hire a lawyer (“B”). If A > B, it’s probably a good idea to seek the help of a lawyer experienced in the relevant area of law.
Of course if B > A, using pre-printed legal forms might be for you. Just remember, every single factual situation is different, and they can’t all neatly fit into a simple questionnaire. If you decide to use these forms, it’s probably a good idea to have a lawyer at least review them before you rely on them to produce the desired legal outcome.
After all, when it comes to something like a will, you might only get one shot to get it right.
By: Rusty Shackleford