T D P L: Echnology AND Efining THE Ractice OF AW

Edited for the Bellow-Sacks Project
This document may be used for discussion purposes only.

General distribution prohibited.
TECHNOLOGY AND DEFINING THE PRACTICE OF LAW

BY HELEN HONG
DECEMBER 2002

In a Keynote address at Fordham Law School's Colloquium on What Does it

Mean to Practice Law "In the Interests of Justice" in the Twenty-First Century, Deborah
L. Rhode an expert on the delivery of legal services and the legal profession asks
"What, then, is to be done?"1 Acknowledging that many articles are "long on policy
proposals . . . [but] short on strateg[ies] for enacting them,"2 Rhodes offers suggestions
for effecting long term change. In particular, she notes that "as a threshold matter, we
should neither overstate nor overlook the value of recasting lawyers' ethical rules in more
socially responsible directions."3
Rhodes, if anything, understates the importance and necessity for changing ethical
rules we want to change how we deliver legal services. The noble calls for increased pro
bono work,4 limited assistance and self-help technology,5 unbundling of legal services,6
non-lawyer assistance,7 pre-paid legal services,8 and the vaunted complex-mixed model
approaches9 encounter obstacles from ethical rules and state codes. Accordingly, as
1
Deborah L. Rhode, Law, Lawyers, and the Pursuit of Justice, 70 FORDHAM. L. Rev. 1543, 1557 (2002).
Id.
3
Id.
4
See, e.g., Jennifer Carpenter, Learning from Experience: A Guide for States Considering Mandatory Pro
Bono Reporting, COURSE READER Vol. I 309 (1999) (proposing state mandatory reporting schemes to get
increased pro bono participation).
5
See Wayne Moore, The Self-Help Office, COURSE READER Vol. I 423 (2002).
6
See Emily K. Spitzer, The Ethics of Unbundling Legal Services in America: Re-visiting American Legal
Ethics at the Turn of the Millennium, (Spring 2002) at
<http://www.law.harvard.edu/academics/clinical/bellow-sacks/Templates/Spitser%20-%20unbundle.doc>
(analyzing the legal ethics barriers to unbundling proposals, namely competence, scope of representation,
prospective client duties, and limited legal service programs proscriptions in the Model Rules).
7
See, e.g., Kristen Sostowski, Accessing Justice: Reforming Unauthorized Practice Law, Learning from
Advanced Practice Nursing Regulation, (May 2001) at
<http://www.law.harvard.edu/academics/clinical/bellow-sacks/Templates/Sostowski.DOC> (chronicling the
development of unauthorized practice laws and their implications for paralegal delivery of services).
8
See Rebecca L. Golding & Thomas B. Ellis, Prepaid Legal Service Plans: An Analysis and Case-Study
Review, COURSE READER Vol. II 726, 732 - 726 (1996) (considering ethical and regulatory obstacles to prepaid programs).
9
See Wayne Moore, The Future of Legal Services, at
<http://www.legalhotlines.org/articles/FutureoLegalServices.pdf> (last visited May 28, 2003) (describing
an innovative approach to mix delivery systems for legal services).
2

technology increasingly becomes available and proposed as a solution to the problem of

unmet legal needs, the rules governing lawyers must be analyzed and changed to
accommodate these solutions. The ambiguity resulting from the failure to define the
practice of law has left room for technology to be used in the delivery of legal services in
novel and enterprising ways.
The American Bar Association ("ABA") has heeded the call for examination of legal
ethics rules and has proposed a model definition of the "Practice of Law" that will have
an enormous impact on the use of technology.
This Paper examines the regulation of the unauthorized practice of law ("UPL") with
regard to the use of technology to delivery legal services.10 Part I explores the history of
UPL and the newly proposed Model Definition of the Practice of Law. Part II examines
the proliferation of Internet and computer-aided technology in the delivery of legal
services, focusing on online scriveners services for document preparation and other
interactive computer programs. Part III shows that the proposed model definition of the
practice of law will proscribe much of the available technology or permit only a small
and inefficient or ineffectiveuse of technology to deliver legal services. Finally, Part
IV offers proposals on what may be done to ensure that the legal profession develops
alongside technological growth in a more "socially responsible direction."
I.
A HISTORY OF UPL AND THE 2003 PROPOSED DEFINITION OF THE

PRACTICE OF LAW
A.
UPL PAST
10
Although other ethical rules are implicated in the use of technology, including multi-jurisdictional
practice and attorney-client relationship formation, they are outside the scope of this paper and will not be
examined.

When bar organizations first began establishing themselves between 1870 and
1920, UPL rules emerged as a powerful tool to regulate the legal profession.11 Between
1920 and 1960, bar associations strengthened UPL prohibitions through litigation against
nonlawyers and by lobbying for statutory protection in the name of "public and
professional protection."12 The ABA took the helm in 1930 by establishing a Committee
on Unauthorized Practice and publishing its first issue of the Unauthorized Practice
News in 1934.13 By 1937, the ABA amended the Canons of Professional Ethics to include
a prohibition against UPL: "No lawyer shall permit his professional services, or his
name, to be used in aid of, or to make possible, the unauthorized practice of law by any
lay agency, personal, or corporate."14 States also strengthened their own UPL
prohibitions.15 Spurred by past success, the ABA soon announced "statements of
principles" designed to protect the legal profession,16 limiting attorney coordination with
accountants, architects, banks, claims departments, collection agencies, law book
publishers, realtors, and social workers.17
11
Indeed, even the first ABA Canons of Ethics had no UPL bars. See, Barlow F. Christensen, The
Unauthorized Practice of Law: Do Good Fences Really Make Good Neighborsor even Good Sense?,
1980 AM. B. FOUND. RES. J. 159, 161-201 (1980). Christensen notes that UPL regulations started as a
means to curb the excess of lawyers and the public's distrust for their fees. Id. at 162-65. However, UPL
soon became a means to effect self-serving purposes.
12
See, Note, There Goes the Monopoly: The California Proposal to Allow Nonlawyer to Practice Law, 44
VAND. L. REV. 179, 183-86 (1991) (chronicling the development of UPL).
13
See, CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 15.1.1, at 825-26 (1986). There were over 400
state and local bar associations that had formed UPL investigation committees by 1940. See Christensen,
supra note Error: Reference source not found, at 189.
14
ABA Canons of Prof. Ethics 47 (1937).
15
By 1920, 21 states had UPL statutes on the books. See Christensen, supra note Error: Reference source
not found, at 180. See also infra appendix with representative state statutes on the practice of law.
16
See Christensen, supra note Error: Reference source not found, at 195-96.
17
See id.

However, the limitations on attorney activity were challenged and undermined as

antitrust violations18 and the ABA soon rescinded all "statements of principles."19 UPL
enforcement then waned:
The ABA attributes the decline in UPL enforcement to several factors,
which are as follows: (1) widespread use of work-reducing technology,
such as the typewriter and computer, which allowed lawyers to hire
nonlawyers for ministerial tasks formerly performed by lawyers or clerks
"reading the law"; (2) relaxing UPL rules in the 1960s to permit the use of
paralegal or legal assistants to perform what was formerly considered
"lawyer's work"; (3) explosive growth in the number of administrative
proceedings before state and federal agencies in which nonlawyers were
permitted to represent others; (4) high cost to the bar of prosecuting
numerous UPL cases; (5) states' attorneys general and prosecutors giving
low priority to UPL cases; (6) state courts' reluctance to find UPL except
in the case of actual harm to the clients or public; (7) U.S. Supreme Court
case law carving out constitutionally-protected exceptions to UPL
prohibitions; and (8) negative public reaction to UPL restrictions.20
Nevertheless, many observers note an increased aggression against UPL today and a
"limited revival of UPL enforcement efforts by bar associations."21
b.
UPL PRESENT
Regulations against UPL are found in state statutes, state common-law, and in
professional responsibility rules. Currently, Rule 5.5 of the Model Rules of Professional
Conduct states that:
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the
legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
18
See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) (finding that a statement of principle setting price
floors for legal tasks violative of antitrust laws).
19
See James Podgers, Statements of Principles: Are They on the Way Out?, 66 A.B.A. J. 129 (1980)
20
Derek A. Denckla, Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and
Ethical Parameters, 67 FORDHAM. L. REV. 2581, 2585 n.19 (1999) (citing Commission on Nonlawyer
Practice, American Bar Ass'n, Nonlawyer Activity in Law-Related Situations 23 (1995)).
21
Id.

(1)
except as authorized by these Rules or other law, establish an office or

other systematic and continuous presence in this jurisdiction for the
practice of law; or
(2)
hold out to the public or otherwise represent that the lawyer is admitted to
practice law in this jurisdiction.22
There is, however, no clear definition of what constitutes the practice of law. The Model
Code's Ethical Canon 3-5 explains that it is "neither necessary nor desirable to attempt
the formulation of a single, specific definition of what constitutes the practice of law,"23
though it does state broadly that:
The practice of law relates to the rendition of services for others that call
for the professional judgment of a lawyer. The essence of the professional
judgment of the lawyer is his educated ability to relate the general body
and philosophy of the law to a specific legal problem of a client; and thus,
the public interest will be better served if only lawyers are permitted to act
in matters involving professional judgment. Where this professional
judgment is not involved, non-lawyers . . . may engage in occupations
that require a special knowledge of law in certain areas. But the services
of a lawyer are essential in the public interest whenever the exercise of
professional legal judgment is involved.24
State statutes that purport to define "practice of law" are equally vague25 and the case law
also murky. Practitioners and non-lawyers alike must wade through confusing statutes
and case law in order to understand their limits and constraints.26
c.
UPL FUTURE
22
Model Rules of Professional Conduct Rule 5.5 (2002) (including new amendments) (commenting that
the "definition of the practice of law is established by law and varies from one jurisdiction to another.
Whatever the definition, limiting the practice of law to members of the bar protects the public against
rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the
services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the
delegated work and retains responsibility for their work").
23
Model Code of Professional Responsibility Ethical Canon 3-5 (1983).
24
Id.
25
See, e.g., Sostowski, supra note Error: Reference source not found, at 633 (discussing state statutes and
case law definitions of the practice of law).
26
See Garrett Glass & Kathleen Jackson, The Unauthorized Practice of Law: The Internet, Alternative
Dispute Resolution, and Multidisciplinary Practices, 14 GEO. J. L. ETHICS. 1195, 1195 (2001); Catherine J.
Lanctot, Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law,
30 HOFSTRA L. REV. 811, 812-13 (2002) ("Resting a fundamental regulatory principle of the legal
profession on such a formless concept creates its own set of problems when lawyers seek to prevent lay
people from encroaching on their professional territory.").

The ABA's Center for Professional Responsibility therefore set up a Task Force
on the Model Definition of the Practice of Law.27 Acknowledging the difficulty of an
ambiguous definition and "the changing environment surrounding the work that lawyers
do and the needs of the public," the Task Force proposed its own model definition in
September 2002.28 The Task Force invited interested parties to submit their own
definitions and to attend a hearing in February 2003 to develop a new definition.29 "The
spotty enforcement of unauthorized practice of law statutes across the nation and
arguably an increasing number of attendant problems related to the delivery of services
by nonlawyers" made drafting a new definition of the practice of law especially
important.30 The Task Force's preliminary draft defines the practice of law as:
(a) The practice of law shall be performed only by those authorized by the highest court
of this jurisdiction.
(b) Definitions:
(1) The "practice of law" is the application of legal principles and judgment
with regard to the circumstances or objectives of a person that require the
knowledge and skill of a person trained in the law.
(2) "Person" includes the plural as well as the singular and denotes an
individual or any legal or commercial entity.
(3) "Adjudicative body" includes a court, a mediator, an arbitrator or a
legislative body, administrative agency or other body acting in an
adjudicative capacity. A legislative body, administrative agency or other
body acts in an adjudicative capacity when a neutral official, after the
presentation of evidence or legal argument by a party or parties, will render
a binding legal judgment directly affecting a partys interests in a particular
matter.
(c) A person is presumed to be practicing law when engaging in any of the following
conduct on behalf of another:
(1) Giving advice or counsel to persons as to their legal rights or
responsibilities or to those of others;
27
See Center for Professional Responsibility, ABA, Task Force on the Model Definition of the Practice of
Law, at <http://www.abanet.org/cpr/model_def_home.html> (last visited Dec. 6, 2002).
28
Id.
29
See id. ("All written submissions should be sent to Art Garwin at agarwin@staff.abanet.org by December
20, 2002.").
30
Id. (purporting to balance the goals "to provide the public with better access to legal services, be in
concert with governmental concerns about anticompetitive restraints, and provide a basis for effective
enforcement of unauthorized practice of law statutes").

(2) Selecting, drafting, or completing legal documents or agreements that
affect the legal rights of a person;
(3) Representing a person before an adjudicative body, including, but not
limited to, preparing or filing documents or conducting discovery; or
(4) Negotiating legal rights or responsibilities on behalf of a person.
(d) Exceptions and exclusions: Whether or not they constitute the practice of law, the
following are permitted:
(1) Practicing law authorized by a limited license to practice;
(2) Pro se representation;
(3) Serving as a mediator, arbitrator, conciliator or facilitator; and
(4)
Providing services under the supervision of a lawyer in compliance with

the Rules of Professional Conduct.
(e) Any person engaged in the practice of law shall be held to the same standard of care
and duty of loyalty to the client independent of whether the person is authorized to
practice law in this jurisdiction. With regard to the exceptions and exclusions listed
in paragraph (d), if the person providing the services is a nonlawyer, the person shall
disclose that fact in writing. In the case of an entity engaged in the practice of law,
the liability of the entity is unlimited and the liability of its constituent members is
limited to those persons participating in such conduct and those persons who had
knowledge of the conduct and failed the same.
(f) If a person who is not authorized to practice law is engaged in the practice of
law, that person shall be subject to the civil and criminal penalties of this
jurisdiction.31
The Task Force explicitly notes that the primary consideration in defining the practice
of law is consumer protection.32 The Task Force also acknowledges that the practice of
law entails specific acts directed toward specific individuals. Therefore, legal self-help
books do not fall under the new definition.33
There is no discussion about the "spotty enforcement" the definition seeks to remedy,
nor is the anticipated breadth and scope of these definitions addressed. The platitudes of
"consumer protection" and "public benefit" seemingly are sufficient for the ABA. As
31
Id. at <http://www.abanet.org/cpr/model_def_definition.html>.
See id. at comment 1.
33
See id.
32

discussed infra, however, the ABA must consider the severe implications of this
definition before adopting it as proposed.
II.
THE TECHNOLOGICAL PROMISE: DELIVERY THROUGH INVENTION

Many scholars have cited technology as a potential solution to the problem of
unmet legal needs. Whether simply a source of information, or an interactive problem

solver,34 the Internet promises to be a fountainhead of enterprising approaches to the
practice of law. As technology and the law simultaneously shape the boundaries and
limits of unique methods of practice, "the legal community is questioning whether the
new technology may be a double-edged sword"35 as computerized assistance takes the
place of lawyers.
In 2001, over 320 million people worldwide had access to the Internet. By 2006,
the number will reach 720 million.36 "Indeed, software and Internet services are eroding
the territory that was once the exclusive domain of many professionals,"37 spurning
optimistic visions of an access-ready semiotic democracy.
A legal software and Internet services market has emerged with the development
of technological capability. Computerized software and tailored websites are the progeny
of the self-help legal market popularized in the 1960's.38
34
See, e.g., Moore, supra note Error: Reference source not found, at 423-24 (describing a Self-Help Office
where a paralegal would help a client find legal advice on the web).
35
Julee C. Fischer, Policing the Self-Help Legal Market: Consumer Protection or Protection of the Legal
Cartel?, 34 IND. L. REV. 121, 121 (2000).
36
See Fischer, supra note Error: Reference source not found, at 123 (noting that individuals now turn to the
Internet to diagnose medical problems, to purchase prescription medications, transact mortgages, and
more).
37
Id. at 123.
38
See Catherine J. Lanctot, Scriveners in Cyberspace: Online Document Preparation and the Unauthorized
Practice of Law, 30 HOFSTRA L. REV. 811, 822-29 (describing the popularity of Norman Dacey's 1965 selfhelp book How to Avoid Probate! and the subsequent attempts by the New York bar to enjoin publication of
the book as UPL); see also Fischer, supra note Error: Reference source not found, at 125 (describing the
popularity of self-help books for their low-cost and "no need to make an appointment with a lawyer, take

a. Court Challenges
The debate over whether books constituted UPL peaked with Norman Dacey's
book entitled How to Avoid Probate!. Daceys book contained forms for trusts and wills,
and it included advice on how to use them.39 When the book became a New York Times
bestseller, numerous state bars began investigating Dacey, culminating in N.Y. County
Lawyers' Ass'n v. Dacey.40 In Dacey, the highest court of New York characterized How to
Avoid Probate! as a "publication of a legal text which purports to say what the law is,"
notably missing the "essential . . . practice which is the representation and the advising of
a particular person in a particular situation."41 Without specific information tailored to a
specific, and "readily identifiable" person, the court found that the book was not violative
of UPL.42
Similarly, document preparation programs, which became popular in the 1970's, faced
UPL challenges by state bars.43 While most states allowed the sale of preprinted
documents and what Catherine Lanctot calls "scriveners" or typing services, none would
allow nonlawyers to provide advice on what form to purchase, or what information
should be typed.44 As Lanctot notes, however, the "distinction between serving as a
scrivener and providing advice becomes murky . . . because of the difficulty inherent in
preparing a form for someone without answering any question or offering an opinion."45
time off work, fight traffic, or pay high legal fees").

39
See id. at 822.
40
21 N.Y.2d 694, 234 N.E.2d 459, 287 N.Y.S.2d 422 (1967).
41
Id. (adopting the dissenting opinion of the lower court opinion, N.Y. County Lawyers' Ass'n v. Dacey 28
A.D.2d 161, 283 N.Y.S.2d 984, 996-997 (App.Div. 1966) (Stevens, J. dissenting).
42
Id.
43
See Lanctot, supra note Error: Reference source not found, at 830.
44
See id.
45
Id.
10

In Oregon State Bar v. Gilchrist,46 State Bar v. Cramer,47 Florida Bar v.

Brumbraugh,48 State v. Hill,49 and People v. Landlords Prof'l Servs.,50 each court found
that the sale of documentsprepared or notwas permissible so long as there was no
personal contact between the preparation company and the individual purchaser. These
rulings effectively prohibited any "consultation, explanation, recommendation or advice
or other assistance in selecting particular forms, in filling out any part of the forms, or
suggesting or advising how the forms should be used in solving the particular customer's"
problems.51
Conversely, a court in Texas enjoined the sale of a book with forms on creation of
wills "because a will secures legal rights and involves the giving of advice requiring the
use of legal skill or knowledge . . . the preparation of a will involves the practice of
law."52 The courts opinion explicitly noted that, Reliance on his forms leads to a false
sense of security and often unfortunate circumstances for the general public.53
b. Review of legal help websites
While computerized legal software and websites may be considered high-tech
analogs to self-help books and scriveners services, they also contain significant
differences that may impact the allowance, or disallowance, of computerized and Internet
legal programs. First, there is the ease of access and number of sites available. A simple
46
538 P.2d 913 (Or. 1975) (allowing document preparation so long as there was no personal contact).
249 N.W.2d 1 (Mich. 1976) (same).
48
355 So.2d 1186 (Fla. 1978) (allow sale of legal forms though not advice or assistance to fill out forms).
49
573 P.2d 1078 (Kan. 1978)
50
264 Cal. Rptr. 548 (Ct. App. 1989) (selling forms is permissible so long as there is no personal advice).
51
Gilchrist, 538 P.2d at 919.
52
Fadia v. UPC, 830 S.W.2d 162 (Tex. App. 1992). Decades earlier, the court had come to a similar
conclusion in the infamous case of Palmer v. Unauthorized Practice Committee, 438 S.W.2d 374 (Tex. Civ.
App. 1969) (disallowing will form sales because the forms were too "real").
53
Fadia, 830 S.W.2d at 165.
47
11

Boolean search of the web for "legal services internet" brings up 3,880,000 websites!54 A
small sampling includes: Freeadvice.com," the best law site for consumers, with easy to
understand answers"; Legaladviceline.com, offering legal advice by "telephone, with
automated legal documents, including divorce forms, small claims complaints, and
landlord-tenant pleadings"; Getting-Legal-Advice.com, offering "free legal needs
analysis, free standard will, and information on divorce, child support, contracts and
more"; Nolo.com, with thousands of books and self-help documents; LegalZoom.com,
which offers actual form preparation; and Mylawyer.com, also offering prepared
documents, to name but a few. While many are simply computerized Dacey's or self-help
books, many offer integrated services that may run afoul of UPL proscriptions.
In 1997, two brothers launched DesktopLawyer.com55 in the United Kingdom.56
DesktopLawyer.com offers legal documents, personalized forms, and legal advice for a
low-cost fee. The website also includes a document assembly program called Rapidocs,57
which creates customized documents by collating answers to questions posed by the
program.58 The program provides guidance to each question and legal information
coming through comprehensive user notes for the customer. The website also offers
more comprehensive assistance through LawAssure, a click-of-the-mouse attorney ready
54
I conducted the search on <http://www.yahoo.com> on Nov. 23, 2002. Although many of the websites
found by the search were not salient to the delivery of legal services, even if only 10% were valid (a
conservative estimate), that would leave well over 100,000 sites for advice, forms, and legal assistance.
55
See Desktop Lawyer, at <http://www.desktoplawyer.co.uk/dt/browse/law> (last visited May 28, 2003)
("Why pay a solicitor for legal documents when you can do it yourself? Wills, divorce, tenancy agreements,
employment contracts, etc.").
56
The United Kingdom has much less restrictive unauthorized practice laws. It does not prohibit
laypersons from giving legal advice, only from misrepresenting that they are legal specialists. See John D.
Messina, Lawyer + Layman: A Recipe for Disaster! Why the Ban on MDP Should Remain, 62 U. PITT. L.
REV. 367, 372 (2000).
57
See id.
58
See id.; Lanctot, supra note Error: Reference source not found, at 819. Rapidocs creates many different
types of legal documents, including wills, tenancy agreements, employee contracts, change of names,
powers of attorney, divorce, and other business forms.
12

to answer any questions. LawAssure is ancillary to, and often "unnecessary" for the
simple Rapidocs technology.
DesktopLawer.com contains an explicit disclaimer, warning consumers not to rely on
the documents if further legal assistance is necessary. The disclaimer does not, however,
state when such additional legal assistance is necessary. Additionally, the website notes
that its services cannot be used in the United States:
A special note relating to the United States of America (USA) or Canada because of the particular circumstances and nature of the legal systems of
the USA and Canada, no document on the Desktop Lawyer service can be
used in those countries or in connection with people or property there. We
cannot supply any document to you for such a purpose.59
The popularity of the website was both unexpected and rapid. The owners claim
that 15% of the uncontested divorces have been brought through the DesktopLawyer.com
services since 1999.60 They cite the website's low cost, ease of use, and accuracy as the
harbingers of success.61
In the United States, the low-cost, easily-accessible Desktoplawyer.com format
has been replicated in, inter alia, MyLawyer.com in Maryland62 and LegalZoom.com.
Both offer documents and forms tailored to the individual. LegalZoom purports to have
"experienced paralegals" review the documents before giving them to the consumer.63
Did you know that 70% of those who try to complete their own legal
documents make mistakes? With LegalZoom, you will not be left on your
own. After you submit your order, LegalZoom will review it for
59
See id.
See Delia Venables, Desktop Lawyer Scoops the Pool, Internet Newsl. For Law., Jan/Feb. 2000.
61
The owners commented at an ABA Meeting that "the legal knowledge we've compiled . . . is in a
centralized location . . . and it's easily accessible to consumers. It costs us little to create, it costs us
virtually nothing to store, and it costs us nothing to deliver." Cohen at ABA meeting in 2000.
62
See MyLawyer.com, at <http://mylawyer.com> (last visited Nov. 25, 2002) ("We have done our best to
provide useful, accurate legal information and forms. However, this web site is not a substitute for legal
advice from an attorney.")
63
See LegalZoom.com, at <http://legalzoom.com> (last visited Nov. 25, 2002) ("Take care of common
legal matters from your home or office! Created by top attorneys, LegalZoom uses the latest technology to
help you prepare reliable legal documents online.").
60
13

completeness, spelling and other common mistakes. Furthermore, our

customer service specialists are always available to answer your
questions.64
These services are different from traditional form-providers that do not engage in
scrivener's services or prepare any documents.65
Richard Granat66 created MyLawyer.com. The website specifically disavows that
it is a law firm instead, it describes itself as a legal information services company,
consisting of lawyers with computer skills, paralegals, web marketing specialists, legal
researchers, and computer professionals skilled in website development.67 On its
website, the company offers statistics on the success of pro se litigants who used
MyLawyer.com. The website similarly points to success of pro se litigants generally:
In an evaluation study undertaken by the University of Maryland School
of Law of a sample drawn from over 10,000 pro se litigants in family
matters in Maryland Courts, seventy-four (74%) of the [sic] reported that
they were satisfied with the result and would represent themselves again.
Fifty-four (54%) percent reported that they decided to represent
themselves because they thought a lawyer would be too expensive, and an
additional eighteen (18%) reported that they represented themselves
because they did not think that the problem was sufficiently complicated
that a lawyer's services were required.68
Legalzoom.com claims that it was founded by "expert attorneys" and offers
specialized documents normally too complicated for do-it-yourself kits.69 The website
offers statistics of over 20,000 satisfied customers each with savings of over 85% of
64
Id.
See, e.g., National Court Documents, at <www.docupro.org> (last visited May 28, 2003); US Legal
Forms, at <www.uslegalforms.com> (last visited May 28, 2003); Docupronet, at <www.docupro.net> (last
visited May 28, 2003).
66
Richard Granat is the former President and Dean of the Philadelphia Institute for Paralegal Training, the
nation's first paralegal training school and a committee member of the ABA's eLawyering Task Force.
67
MyLawyer.com, Frequently Asked Questions About MyLawyer.com, at
<http://www.mylawyer.com/aboutmylawyer.html> (last visited May 27, 2003).
68
See id.
69
See Legalzoom.com, supra note Error: Reference source not found.
65
14

comparable attorney's fees. Legalzoom.com charges $249 for a divorce involving no

children, $35 for a standard will kit, and $119 for a standard prenuptial agreement.70
c. Quicken Lawyer
The online services are one-step removed from the desktop software available to
consumers through CD-ROM as Quicken Lawyer 2003 Personal.71 The program claims
to facilitate quick, easy-to-use, accurate, and cheap assistance in drafting many different
types of documents, including wills, living trusts, financial powers of attorney, healthcare
directives, and child and elder care agreements. The program also includes over 30,000
documents for an executor each tailored to specific state requirements.72 The software
chooses the appropriate document, and then through questions and answers, fills in the
necessary blanks and generates a tailored document.
An earlier version of Quicken Lawyer created a great deal of controversy in Texas
in 1999. The UPL Committee of Texas sued the manufacturers of Quicken Family
Lawyer 8.0 and 9.0 for UPL, arguing that the programs were merely "high tech lawyers"
that interacted with the client to choose and prepare the appropriate document.73 The
court agreed, noting that there was an "overall air of reliability created by the product."
Language on the package stated that legal experts had created the program, that the
documents were tailored, and that the documents were comprehensive.74 The Texas
Legislature, however, soon responded with legislation to specifically exclude software
70
Id.
The program is available for sale at Nolo.com. See Nolo.com, at
<http://www.nolo.com/lawstore/products/product.cfm/objectID/6E9ED903-C9B4-42E09C2E235DD87A0A8A> (last visited May 28, 3002). The CD-ROM is available for $49.95. Id.
72
Id.
73
See UPL v. Parsons Tech., Inc., 1999 US Dist Lexis 813 (N.D. Tex., Jan. 22 1999). See also, Steve
French, When Public Policies Collide . . . Legal "Self-Help" Software and the Unauthorized Practice of
Law, 27 RUTG. COMP. & TECH. L.J. 93, 109-15 (2001) (chronicling the Parsons Tech. case and subsequent
legislative response).
74
Id. at 6-7.
71
15

that clearly stated it is "not a substitute for the advice of an attorney."75 Thus, the 5th
Circuit vacated the Quicken 8.0 and 9.0 on appeal.76
In Oregon, after a similar debate, the Bar association decided to allow
computerized interactive legal information serviceswith no personal contact. The bar,
however, left open the possibility that "artificial intelligence might develop to the point
where its applications would require resolution of the question whether computer
generated legal services would constitute the practice of law."77
The proliferation of technology will undoubtedly continue. The debate should
center, therefore, not on whether existing laws can accommodate the technology, but
what forms the laws should take in order to better utilize the technology in a balanced
approach to consumer need and consumer protection. Particularly for the middle class,
for those families living on incomes just over 125 percent of the poverty line, and for
individuals with unmet legal needs, technology presents a prominent opportunity for
affordable legal aid.
III.
UPL AND TECHNOLOGY: THE PROPOSED DEFINITION AND ITS LIKELY

EFFECTS
The case law today generally allows document preparation and generation without
furnishing any legal advice.78 While services such as those provided by LegalZoom.com
are questionable because of the paralegal oversight and editing, computer programs like
Quicken and websites like MyLawyer.com are fairly comfortably protected now. The
75
H.B. 1507, 76th Leg. Reg. Sess. (Tex. 1999).

179 F.3d 956 (5th Cir. 1999).
77
French, supra note Error: Reference source not found, at 117 (quoting Ore. State Bar Ass'n Bd. of Gov.,
Formal Op. 1994-137 (1994), 1994 WL 455098, *2). French notes that a former member of Oregon's Bar
Association disagreed with the opinion, noting that the interactive nature of the programs constituted UPL.
Id.
78
See, e.g., Lanctot, supra note Error: Reference source not found, at 849 n. 202.
76
16

new definition, however, will effectively take away such protections if states adopt the
ABA's recommendation as is generally done throughout many jurisdictions.
The new ABA definition of "Practice of Law" maintains some of the ambiguity of
present-day and past definitions. The "practice of law" will be the "application of legal
principles" that require specific legal skills and training.79 The Task Force also
specifically exempts self-help books.
The bite of the definition comes, however, in the presumptive activities that will
constitute the practice of law under the new proposal. Any "[s]electing, drafting, or
completing legal documents or agreements that affect the legal rights of a person" fall
within the ambit of the definition.80 Therefore, the interactive assistance of websites, the
question and answer decision trees, and the selection of specific legal documents from a
non-specific legal advice website will be implicated in UPL.
The CD-ROM programs, too, would fall prey to UPL enforcement. The balance
struck in the Texas case will not be sufficient for jurisdictions adopting the ABA's
proposed definition: no matter how clear the package disclaimers or language, the
software itself could violate UPL regulations.81 The definition also makes clear that there
is no requirement for a live human being to constitute UPL: a person "denotes an
individual or any legal or commercial entity."82 Therefore, the need for "personal
contact" is a defunct means to categorize UPL from legal assistance.
Whether the ABA purposefully intended to address the proliferation of
technological development is unclear from the rhetorical language regarding "the spotty
79
See supra text accompanying note Error: Reference source not found.
Id.
81
Texas legislation currently specifically exempts Internet websites and computer programs. See infra
Selected State Statutes, Texas.
82
Id.
80
17

enforcement of [UPL and] attendant problems related to the delivery of services by

nonlawyers." Without clearly indicating, however, that the likely effect of the definition
is to preclude the newer interactive self-help websites and computer software, the ABA
quietly creates a barrier to pro-se solutions to the delivery of legal services.
IV.
Technology and UPL Coexistence
The wholesale deregulation or allowance of Internet or computer aided

technology will most certainly result in new problems. The ABA's e-Lawyering website
prominently displays a link to a New York Times Magazine story about a 15 year old boy
who dispensed "legal advice" to individuals on AskMe.com.83 Before he had been
caught, the boy had received the number 3 ranking on "expert advice" for criminal law
matters. Tellingly, after he revealed that he was a 15 year old merely relying on an "I just
know [the answers]" for his responses, his ranking hit number 1.84 Consumers came to
see him as a prodigy sticking it to the organized profession.85 These consumer protection
nightmares are precisely what the organized bar professes to address and prohibit. Why,
after all, should the bar "wait until the damage is done and people get ripped off, [when
we can] move to prevent damage now?"86
The pre-emptive strike approach is not appropriate when the benefits of increased
low-cost access to legal help greatly outweigh protection gained by increased regulation.
Only two percent of unauthorized practice inquiries arise from consumer harm,87 and
83
ABA's e-Lawyering, Legal Information vs. Legal Advice, at

<http://www.elawyering.org/ethics/advice.shtml> (last visited May 28, 2003) (linked to Michael Lewis,
Faking It: The Internet Revolution has Nothing to do with Nasdaq, N.Y. TIMES, Jul. 15, 2001 (Magazine),
at 3.
84
Lewis, supra note Error: Reference source not found, at 5-6.
85
See id.
86
Fischer, supra note Error: Reference source not found, at 133 (quoting Mark Ricer, the attorney for the
Texas UPL Committee).
87
See id. at 140.
18

studies show that self-protection from the organized bar drives UPL regulations.88
Although a 1993 study on self-help forms showed an alarmingly low percentage of errorfree completions, the analysis did not compare the statistics to lawyer-completed forms or
other intervening variable effects.89 In any case, it seems counterintuitive to allow
individuals to go about using books with no assistance and suffer greater harm than to
allow trained assistance to help guide the way.
Legal self-help technology also has potential to improve the qualities of services
available. "The more resources available for consumers to tap, the more service
providers would be required to compete for business, both on price and quality. Their
ability to compete on price would be hampered, since lower-priced self-help products
would be an alternative."90 Additionally, licensing schemes, or investigation of actual
harm complaints could alleviate and improve the delivery of legal services.
Before the ABA imposes a ban on activity, it must have concrete data to justify
the wholesale denial of the activity. The ABA could encourage alternative warnings and
regulations, such as disclaimer language on packaging, to allay the concerns of
detrimental reliance as proffered by the Parsons court. And, as French noted, state bars
could form coalitions with manufacturers jointly to develop appropriate and reliable
technology for their respective states.91 Further, bar associations could regulate websites
and technology by demarking technology and websites considered "sufficiently reliable
with a logo or seal of approval.
88
Id.; see also Thomas D. Morgan, Toward Abandoning Organized Professionalism, 30 HOFSTRA L. R. 947
(2002) (advocating the abandonment of "organized professionalism" in the legal profession).
89
Id. at 141.
90
Id. at 144.
91
See French, supra note Error: Reference source not found, at 129.
19

Importantly, before the ABA promulgates the new definition of the practice of
law, the ABA must candidly appraise the effects and ramifications of this new definition
on emerging technological responses to legal needs. Before the 2003 ABA conference
where the ABA might adopt this definition, the ABA should clarify what doesand what
does notfall within the ambit of the definition. Obviously, the ABA intended to
accomplish that goal of clarifying meaningand precatory language cannot divorce the
ABA from that requirement. Professor Rhode acknowledged what drives the
consideration of legal ethics:
Our profession has done disgracefully little to address the often prohibitive
price of social justice. It is a shameful irony that the nation with the
world's highest concentration of lawyers meets less than one-fifth of the
legal needs of the poor, and routinely leaves middle-income households
without a remedy that they can afford.92
Before we allow constraints to further abdicate our larger responsibilities, we must ensure
that the restriction is worth the price. The Task Force's definition of practice of law as
proposed fails to do so and will prohibit widely used technology that is helping to allay
some need.
92
Rhode, supra note Error: Reference source not found, at 1549.
20

Some State Law Practice of Law Definitions (from ABA's Task Force from the
Center for Public Responsibility)
ALABAMA
34-3-6. Who may practice as attorneys.
(b) For the purposes of this chapter, the practice of law is defined as follows:
Whoever,
(1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act
in connection with proceedings pending or prospective before a court or a body, board, committee, commission or
officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of
the judicial power of the state or any subdivision thereof; or
(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels
another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting
or relating to secular rights; or
(3) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, does any act in a
representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a
wrong or the enforcement or establishment of a right; or
(4) As a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts,
claims or demands between persons with neither of whom he is in privity or in the relation of employer and employee
in the ordinary sense; is practicing law.
(c) Nothing in this section shall be construed to prohibit any person, firm or corporation from attending to and caring
for his or its own business, claims or demands, nor from preparing abstracts of title, certifying, guaranteeing or
insuring titles to property, real or personal, or an interest therein, or a lien or encumbrance thereon, but any such
person, firm or corporation engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles to real or
personal property are prohibited from preparing or drawing or procuring or assisting in the drawing or preparation of
deeds, conveyances, mortgages and any paper, document or instrument affecting or relating to secular rights, which
acts are hereby defined to be an act of practicing law, unless such person, firm or corporation shall have a proprietary
interest in such property; however, any such person, firm or corporation so engaged in preparing abstracts of title,
certifying, guaranteeing or insuring titles shall be permitted to prepare or draw or procure or assist in the drawing or
preparation of simple affidavits or statements of fact to be used by such person, firm or corporation in support of its
21

title policies, to be retained in its files and not to be recorded.
ALASKA
Rule 15. Grounds For Discipline.
(b) Unauthorized Practice of Law. (1) For purposes of the practice of law prohibition for disbarred
and suspended attorneys in subparagraph (a)(6) of this rule, except for attorneys suspended solely
for non-payment of bar fees, "practice of law" is defined as: (A) holding oneself out as an attorney
or lawyer authorized to practice law; (B) rendering legal consultation or advice to a client; (C)
appearing on behalf of a client in any hearing or proceeding or before any judicial officer,
arbitrator, mediator, court, public agency, referee, magistrate, commissioner, hearing officer, or
governmental body which is operating in its adjudicative capacity, including the submission of
pleadings; (D) appearing as a representative of the client at a deposition or other discovery matter;
(E) negotiating or transacting any matter for or on behalf of a client with third parties; or (F)
receiving, disbursing, or otherwise handling a client's funds. (2) For purposes of the practice of law
prohibition for attorneys suspended solely for the non-payment of fees and for inactive attorneys,
"practice of law" is defined as it is in subparagraph (b)(1) of this rule, except that these persons
may represent another to the extent that a layperson would be allowed to do so.
ARIZONA (PENDING)
22

(a) Supreme Court Jurisdiction Over the Practice of Law
1.Jurisdiction. Any person or entity engaged in the practice of law or unauthorized practice of law in
this state, as defined by these rules, is subject to this courts jurisdiction.
2.Definition: Practice of Law. The "practice of law" means providing legal advice or services to or
for another by:
(A)Preparing any document in any medium intended to affect or secure legal rights for a specific
person or entity;
(B)Preparing or expressing legal opinions;
(C)Representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal
dispute resolution process such as arbitrations and mediations;
(D)Preparing any document through any medium for filing in any court, administrative agency or
tribunal for a specific person or entity; or
(E)Negotiating legal rights or responsibilities for a specific person or entity.
3.Definition: Unauthorized Practice of Law. "Unauthorized practice of law" includes but is not
limited to:
(A)Engaging in the practice of law by persons or entities not authorized to practice pursuant to
paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 33(d); or
(B)Using the designations "lawyer," "attorney at law," "counselor at law," "law," "law office," "JD,"
"Esq.," or other equivalent words by any person or entity who is not authorized to practice law in this
state pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 33(d), the
use of which is reasonably likely to induce others to believe that the person or entity is authorized to
engage in the practice of law in this state.
4. Definition of Paralegal/Legal Assistant. A "legal assistant/paralegal" is a person qualified by
education and training who performs substantive legal work, which requires a sufficient knowledge
and expertise of legal concepts and procedures, who is supervised by an active member of the State
Bar of Arizona and for whom an active member of the state bar is responsible, unless otherwise
authorized by Supreme Court Rule.
5. Definition of Mediator. "Mediator" means an impartial individual who is appointed by a court or
government entity or engaged by disputants through written agreement, signed by all disputants, to
mediate a dispute.(b) Authority to Practice. Except as hereinafter provided in section (c), no person
shall practice law in this state or hold himself out as one who may practice law in this state unless he
is an active member of the state bar, and no member shall practice law in this state or hold himself
out as one who may practice law in this state, while suspended, disbarred, or on disability inactive
status.
(c) Exceptions. Notwithstanding the provisions of section (b):* * *
15.Nothing in this rule shall affect the ability of nonlawyer assistants to act under the supervision of
a lawyer in compliance with Rule 5.3 of the rules of professional conduct.
16.Nothing in these rules shall prohibit the supreme court, court of appeals, or superior courts in this
state from creating and distributing form documents for use in Arizona courts.
17.Nothing in these rules shall prohibit the preparation of documents incidental to a regular course of
business when the documents are for the use of the business and not made available to third parties.
18.Nothing in these rules shall prohibit the preparation of tax returns. * * *
21. Nothing in these rules shall prohibit a certified document preparer from performing services in
compliance with Arizona Code of Judicial Administration, Part 7, Chapter 2, Section 7-208.
GEORGIA
23
5-19-50.

"Practice
of
law"
defined.
The practice of law in this state is defined as: (1) Representing litigants in court and preparing
pleadings and other papers incident to any action or special proceedings in any court or other judicial
body; (2) Conveyancing; (3) The preparation of legal instruments of all kinds whereby a legal right
is secured; (4) The rendering of opinions as to the validity or invalidity of titles to real or personal
property; (5) The giving of any legal advice; and (6) Any action taken for others in any matter
connected with the law.
KENTUCKY
3.020. Practice of Law Defined.
The practice of law is any service rendered involving legal knowledge or legal advice, whether of
representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties,
obligations, liabilities, or business relations of one requiring the services. But nothing herein shall
prevent any natural person not holding himself out as a practicing attorney from drawing any
instrument to which he is a party without consideration unto himself therefore. An appearance in the
small claims division of the district court by a person who is an officer of or who is regularly
employed in a managerial capacity by a corporation or partnership which is a party to the litigation
in which the appearance is made shall not be considered as unauthorized practice of law.
LOUISIANA
24

37:212 Practice of Law defined.
A. The Practice of law means and includes:
(1) In a representative capacity, the appearance as an advocate, or the drawing of papers, pleadings
or documents, or the performance of any act in connection with pending or prospective proceedings
before any court of record in this state; or
(2) For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect;
(a) The advising or counseling of another as to secular law;
(b) In behalf of another, the drawing or procuring, or the assisting in the drawing or procuring of a
paper, document, or instrument affecting or relating to secular rights;
(c) The doing of any act, in behalf of another, tending to obtain or secure for the other the
prevention or the redress of a wrong or the enforcement or establishment of a right; or
(d) Certifying or giving opinions as to title to immovable property or any interest therein or as to the
rank or priority or validity of a lien, privilege or mortgage as well as the preparation of acts of sale,
mortgages, credit sales or any acts or other documents passing titles to or encumbering immovable
property.
MARYLAND
Maryland Business Occupations and Professions Code
Sec. 10-101(h)
(1) "Practice law" means to engage in any of the following activities:
(i) giving legal advice;
(ii) representing another person before a unit of the State government or of a political subdivision;
or
(iii) performing any other service that the Court of Appeals defines as practicing law
(2) "Practice law" includes:
(i) advising in the administration of probate of estate of decedents in an orphans court of the state
(ii) preparing an instrument that affects title to real estate
(iii) preparing or helping in the preparation of any form or document that is filed in a court or
affects a case that is or may be filed in a court; or
(iv) giving advice about a case that is or may be filed in a court.
25

MINNESOTA
Proposed to Supreme Court in Petition of Minnesota State Bar Association (Jan. 2002)
"Practice of law" denotes the following activities:
1. Rendering legal consultation or advice to a client;
2. Appearing on behalf of a client in any hearing, proceeding or related deposition or discovery
matter or before any judicial officer, court, public agency, referee, magistrate, commissioner or
hearing officer, except where rules of the tribunal involved permit representation by nonlawyers;
3. Engaging in other activities that constitute the practice of law as provided by statute or common
law.
RHODE ISLAND
11-27-2. Practice of law defined.
The term "practice law" as used in this chapter shall be deemed to mean the doing of any act for
another person usually done by attorneys at law in the course of their profession, and, without
limiting the generality of the foregoing, shall be deemed to include the following:
(1) The appearance or acting as the attorney, solicitor, or representative of another person before
any court, referee, master, auditor, division, department, commission, board, judicial person, or
body authorized or constituted by law to determine any question of law or fact or to exercise any
judicial power, or the preparation of pleadings or other legal papers incident to any action or other
proceeding of any kind before or to be brought before the court or other body;
(2) The giving or tendering to another person for a consideration, direct or indirect, of any advice
or counsel pertaining to a law question or a court action or judicial proceeding brought or to be
brought;
(3) The undertaking or acting as a representative or on behalf of another person to commence,
settle, compromise, adjust, or dispose of any civil or criminal case or cause of action;
(4) The preparation or drafting for another person of a will, codicil, corporation organization,
amendment, or qualification papers, or any instrument which requires legal knowledge and
capacity and is usually prepared by attorneys at law.
(B) Definition of the Practice of Law. The principles underlying a definition of the practice of law
have been developed through the years in social needs and have received recognition by the courts.
It has been found necessary to protect the relation of attorney and client against abuses. Therefore,
it is from the relation of attorney and client that any practice of law must be derived. The relation
of attorney and client is direct and personal, and a person, natural or artificial, who undertakes the
duties and responsibilities of an attorney is nonetheless practicing law though such person may
employ others to whom may be committed the actual performance of such duties. The gravity of
the consequences to society resulting from abuses of this relation demands that those assuming to
advise or to represent others shall be properly trained and educated, and be subject to a peculiar
discipline. That fact, and the necessity for protection of society in its affairs and in the ordered
proceedings of its tribunals, has developed the principles which serve to define the practice of law.
Generally, the relation of attorney and client exists, and one is deemed to be practicing law
whenever he furnishes to another advice or service under circumstances which imply his
26

possession and use of legal knowledge or skill. Specifically, the relation of attorney and client
exists, and one is deemed to be practicing law whenever
(1) One undertakes for compensation, direct or indirect, to advise another, not his regular
employer, in any matter involving the application of legal principles to facts or purposes or desires.
(2) One, other than as a regular employee acting for his employer, undertakes, with or without
compensation, to prepare for another legal instruments of any character, other than notices or
contracts incident to the regular course of conducting a licensed business. (3) One undertakes, with
or without compensation, to represent the interest of another before any tribunal--judicial,
administrative, or executive--otherwise than in the presentation of facts, figures, or factual
conclusions, as distinguished from legal conclusions, by an employee regularly and bona fide
employed on a salary basis, or by one specially employed as an expert in respect to such facts and
figures when such representation by such employee or expert does not involve the examination of
witnesses or preparation of pleadings.
TEXAS
81.101. Definition.
(a) In this chapter the "practice of law" means the preparation of a pleading or other document
incident to an action or special proceeding or the management of the action or proceeding on behalf
of a client before a judge in court as well as service rendered out of court, including the giving of
advice or the rendering of any service requiring the use of legal skill or knowledge, such as
preparing a will, contract, or other instrument, the legal effect of which under the facts and
conclusions involved must be carefully determined.
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the
power and authority under both this chapter and the adjudicated cases to determine whether other
services and acts not enumerated may constitute the practice of law.
(c) In this chapter, the "practice of law" does not include the design, creation, publication,
distribution, display, or sale, including publication, distribution, display, or sale by means of an
Internet web site, of written materials, books, forms, computer software, or similar products if the
products clearly and conspicuously state that the products are not a substitute for the advice of an
attorney. This subsection does not authorize the use of the products or similar media in violation of
Chapter 83 and does not affect the applicability or enforceability of that chapter.
27

WASHINGTON
GR 24 Definition of the Practice of Law
(a) General Definition: The practice of law is the application of legal principles and judgment with
regard to the circumstances or objectives of another entity or person(s) which require the
knowledge and skill of a person trained in the law. This includes but is not limited to:
(1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of
others for fees or other consideration.
(2) Selection, drafting, or completion of legal documents or agreements which affect the legal
rights of an entity or person(s).
(3) Representation of another entity or person(s) in a court, or in a formal administrative
adjudicative proceeding or other formal dispute resolution process or in an administrative
adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for
judicial review.
(4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).
(b) Exceptions and Exclusions: Whether or not they constitute the practice of law, the following are
permitted:
(1) Practicing law authorized by a limited license to practice pursuant to Admission to Practice
Rules 8 (special admission for: a particular purpose or action; indigent representation; educational
purposes; emeritus membership; house counsel), 9 (legal interns), 12 (limited practice for closing
officers), or 14 (limited practice for foreign law consultants).
(2) Serving as a courthouse facilitator pursuant to court rule.
(3) Acting as a lay representative authorized by administrative agencies or tribunals.
(4) Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.
(5) Participation in labor negotiations, arbitrations or conciliations arising under collective
bargaining rights or agreements.
(6) Providing assistance to another to complete a form provided by a court for protection under
RCW chapters 10.14 (harassment) or 26.50 (domestic violence prevention) when no fee is charged
to do so.
(7) Acting as a legislative lobbyist.
(8) Sale of legal forms in any format.
(9) Activities which are preempted by Federal law.
(10) Such other activities that the Supreme Court has determined by published opinion do not
constitute the unlicensed or unauthorized practice of law or that have been permitted under a
regulatory system established by the Supreme Court.
(c) Nonlawyer Assistants: Nothing in this rule shall affect the ability of nonlawyer assistants to act
under the supervision of a lawyer in compliance with Rule 5.3 of the Rules of Professional
Conduct.
28

(d) General Information: Nothing in this rule shall affect the ability of a person or entity to provide
information of a general nature about the law and legal procedures to members of the public.
(e) Governmental agencies: Nothing in this rule shall affect the ability of a governmental agency to
carry out responsibilities provided by law.
(f) Professional Standards: Nothing in this rule shall be taken to define or affect standards for civil
liability or professional responsibility.
WYOMING
Rule 11. Attorneys right to practice law.
(a) "Practice of law" means advising others and taking action for them in matters connected with
law. It includes preparation of legal instruments and acting or proceeding for another before judges,
courts, tribunals, commissioners, boards or other governmental agencies.
DISTRICT OF COLUMBIA
Rule 49
(2) "Practice of Law" means the provision of professional legal advice or services where there is a
client relationship of trust or reliance. One is presumed to be practicing law when engaging in any
of the following conduct on behalf of another:
(a) Preparing any legal document, including any deeds, mortgages, assignments, discharges, leases,
trust instruments or any other instruments intended to affect interests in real or personal property,
wills, codicils, instruments intended to affect the disposition of property of decedents' estates, other
instruments intended to affect or secure legal rights, and contracts except routine agreements
incidental to a regular course of business;
(b) Preparing or expressing legal opinions;
(c) Appearing or acting as an attorney in any tribunal;
(d) Preparing any claims, demands or pleadings of any kind, or any written documents containing
legal argument or interpretation of law, for filing in any court, administrative agency or other
tribunal;
(e) Providing advice or counsel as to how any of the activities described in sub-paragraph (a)
through (d) might be done, or whether they were done, in accordance with applicable law;
(f) Furnishing an attorney or attorneys, or other persons, to render the services described in
subparagraphs (a) through (e) above.
Comment:
Although section (b) of the original rule included definitions, not all of the essential terms were
defined. The new section (b) follows the conventional approach of rules and statutes in defining
such terms.
29

As originally stated in sections (b)(2) and (3) of the prior Rule, the "practice of law" was broadly
defined, embracing every activity in which a person provides services to another relating to legal
rights. This approach has been refined, in recognition that there are some legitimate activities of
non-Bar members that may fall within an unqualifiedly broad definition of "practice of law."
The definition set forth in section (b)(2) is designed to focus first on the two essential elements of
the practice of law: The provision of legal advice or services, and a client relationship of trust or
reliance. Where one provides such advice or services within such a relationship, there is an implicit
representation that the provider is authorized or competent to provide them; just as one who
provides any services requiring special skill gives an implied warranty that they are provided in a
good and workmanlike manner. See, e.g., Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192,
1200(D.C. 1984); Carey v. Crane Service Co., Inc., 457 A.2d 1102, 1007 (D.C. 1983).
Recognizing that the definition of "practice of law" may not anticipate every relevant
circumstance, the Rule adopts four methods of definition: (1) the more refined definition focusing
on the provision of legal advice or services and a client relationship of trust or reliance; (2) an
enumerated list of the most common activities which are rebuttably presumed to be the practice of
law; (3) this commentary; and (4) opinions of the Committee on Unauthorized Practice of Law
where further questions of interpretation may arise. See section (d)(3)(G) below. (Emphasis added)
The definition of "practice of law," the list of activities, this commentary and opinions of the
Committee on Unauthorized Practice of Law are to be considered and applied in light of the
purposes of the Rule as set forth in the commentary to sections (a) and (b).
The presumption that ones engagement in one of the enumerated activities is the "practice of law"
may be rebutted by showing that there is no client relationship of trust or reliance, or that there is
no explicit or implicit representation of authority or competence to practice law, or that both are
absent. (Emphasis added)
Law clerks, paralegals and summer associates are not practicing law where they do not engage in
providing advice to clients or otherwise hold themselves out to the public as having authority or
competence to practice law. Tax accountants, real estate agents, title company attorneys, securities
advisors, pension consultants, and the like, who do not indicate they are providing legal advice or
services based on competence and standing in the law are not engaged in the practice of law,
because their relationship with the customer is not based on the reasonable expectation that learned
and authorized professional legal advice is being given. Nor is it the practice of law under the Rule
for a person to draft an agreement or resolve a controversy in a business context, where there is no
reasonable expectation that she is acting as a qualified or authorized attorney.
The conduct described in Section (b)(2)(F) concerning the furnishing of attorneys is not intended to
include legitimate or official referral services, such as those offered by the District of Columbia
Bar, bar associations, labor organizations, non-fee pro bono organizations and other courtauthorized organizations.
30

T D P L: Echnology AND Efining THE Ractice OF AW

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TECHNOLOGY AND DEFINING THE PRACTICE OF LAW

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In a Keynote address at Fordham Law School's Colloquium on What Does it

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technology increasingly becomes available and proposed as a solution to the problem of

A HISTORY OF UPL AND THE 2003 PROPOSED DEFINITION OF THE

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However, the limitations on attorney activity were challenged and undermined as

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except as authorized by these Rules or other law, establish an office or

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Providing services under the supervision of a lawyer in compliance with

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THE TECHNOLOGICAL PROMISE: DELIVERY THROUGH INVENTION

unmet legal needs. Whether simply a source of information, or an interactive problem

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time off work, fight traffic, or pay high legal fees").

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In Oregon State Bar v. Gilchrist,46 State Bar v. Cramer,47 Florida Bar v.

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completeness, spelling and other common mistakes. Furthermore, our

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comparable attorney's fees. Legalzoom.com charges $249 for a divorce involving no

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UPL AND TECHNOLOGY: THE PROPOSED DEFINITION AND ITS LIKELY

H.B. 1507, 76th Leg. Reg. Sess. (Tex. 1999).

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enforcement of [UPL and] attendant problems related to the delivery of services by

Technology and UPL Coexistence

The wholesale deregulation or allowance of Internet or computer aided

ABA's e-Lawyering, Legal Information vs. Legal Advice, at

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Rhode, supra note Error: Reference source not found, at 1549.

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Edited for the Bellow-Sacks Project

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