United States: New York Takes The Lead On Online Document Providers

Last Updated: September 17 2019
Article by Ronald C. Minkoff

When considering the impact of technology on the practice of law, one of the most important developments in recent years is the growth of the online document provider industry (OLPs). These for-profit entities – some, like LegalZoom, international in scope, and others much smaller – provide members of the public with legal documents they can use to handle their own legal problems, without having to hire a lawyer. These forms cover a vast number of legal subjects, from wills to corporate formation, from litigation to real estate. Moreover, OLPs provide their services in a variety of formats, from those that provide plain blank forms the consumer can print out and complete on their own, to those consisting of computer algorithms that complete forms for the consumer, to those featuring a clerical employee who guides the consumer online to choose the correct form and properly fill it out, and all manner of iterations in between. One recent study reported online legal forms generate approximately $4.1 billion in annual revenues with forms sold to consumers throughout the United States and many other countries.1

OLPs pose both a major opportunity for, and an existential threat to, our profession. On the one hand, they provide technology solutions that may make it easier and cheaper for lawyers to service their clients, particularly clients of limited means. On the other, these cheaper products threaten the livelihoods of many practitioners, who simply cannot compete with OLPs on price.

How to address this problem has puzzled the Bar, both locally and nationally, for years. Recently, NYSBA and the New York County Lawyers' Association (NYCLA) have taken the lead. Following a three-year study, and working in conjunction with the American Bar Association (ABA), consumer groups and industry representatives, NYSBA and NYCLA proposed Best Practices Guidelines for On-Line Document Providers for consideration by the ABA at its Annual Meeting in San Francisco in August 2019, where they were approved by the ABA House of Delegates. The very existence of the Best Practice Guidelines and the process by which they were created represents a major triumph for the organized Bar of our state, making us a national leader in this important area.

Before we discuss the Best Practice Guidelines, let's take a step back. The legal form industry did not start online; at least as far back as the 1700s, books were written on "do-it-yourself" law and the concept of a scrivener service pre-dates the internet.2 An 1859 book entitled Everybody's Lawyer and Counsellor in Business contains 400 pages of legal forms and information.3 Many court systems and governmental agencies make legal forms available to the public.4 And of course, many older New York practitioners remember Blumberg Forms, blank legal forms on almost every conceivable subject that could be purchased at legal stationery stores and were a staple of New York practice for decades.

Computer technology, however, has taken legal forms to a new level, out of the hands of lawyers and into the hands of consumers. Faced with the choice of paying for a lawyer to guide them or handling the problem on their own with a much-cheaper legal form, many consumers have chosen the latter. As a result, the OLP business continues to grow. LegalZoom estimates that it has served four million customers, that its forms may have created one million corporations, and that someone uses its forms to write a will every three minutes in the United States.5 Indeed, "as computers grow more powerful and ubiquitous, legal work will continue to drift online in different and evolving formats."6 As Arthur Norman Field, past president of NYCLA, put it, "The public has voted that it wants online legal providers and they are here to stay."7

The organized Bar's response to all this has often been confrontational. Bar regulators in Texas, North Carolina, Missouri and other states have sued OLPs (mainly Legal Zoom), accusing them of engaging in the unauthorized practice of law (UPL). This approach has generally failed, with either outright dismissal or settlements calling for minor restrictions on the OLPs. In 2016, the Justice Department and FTC jointly recommended, in the wake of a recent settlement of a suit against LegalZoom by the North Carolina Bar, that the North Carolina General Assembly revise the definition of UPL to avoid undue burdens on "self-help products that may generate legal forms."8 They stated that these self-help products and other interactive software programs for generating legal documents would promote competition by enabling non-lawyers "to provide many services that historically were provided exclusively by lawyers."9 In short, they told the North Carolina legislature – and others who sought to regulate OLPs – to get off the OLPs' backs, and let the industry compete more freely with lawyers in providing legal services.

Footnotes

1. Issues Paper Concerning Unregulated LSP Entities, ABA Comm. on the Future of Legal Services 5 (Mar. 31, 2016), https://www.americanbar.org/content/dam/aba/ images/office_president/final_unregulated_lsp_entities_issues_paper.pdf (citing Will McKitterick, IBISWORLD Industry Report OD5638: Online Legal Services in the U.S. 4 (2014)).

2. Charles Rampenthal, General Counsel of Legal Zoom, Inc., Statement at NYCLA Forum: Should Online Providers of Legal Forms Be Regulated? If So, By Whom? If Not, Why Not? (Sept. 30, 2016).

3. Frank Crosby, Everybody's Lawyer and Counsellor in Business (1859).

4. Such forms appear on, for example, the website of the New York Office of Court Administration (https://www.nycourts.gov/forms/) and the website of California's court system (jttps://www,courts/ca.gov/forms.htm).

5. See Statement of Charles Rampenthal, supra note 2.

6. Barton, Benjamin H., Some Early Thoughts on Liability Standards for Online Legal Providers of Legal Services, 44 Hofstra L. Rev. 541, 546 (2015).

7. Arthur Norman Field, Statement at NYCLA Forum: Should Online Providers of Legal Forms Be Regulated? If So, by Whom? If Not, Why Not? (Sept. 30, 2016). Similarly, Chief Judge Barbara Madsen of the Supreme Court of Washington has stated that "[i]nnovation will continue with or without us, so we need to get in the driver's seat [...][w]e need to get on that bandwagon to change the profession before it runs us over. And I believe that, given the statistics I've heard, maybe we've already been run over." Lorelei Laird, Avvo Founder Tells Lawyers to 'Get Rid of UPL' if They Want Innovation and Access to Justice, ABA Journal (Aug. 3, 2015), http://www.abajournal.com/news/article/ avvo_founder_tells_lawyers_to_get_rid_of_upl_if_they_want_innovation_and_to.

8. See letter from Marina Lao, Dir., Office of Policy Planning, Fed. Trade Comm'n and Robert Porter, Chief, Legal Policy Section, Antitrust Div., U.S. Dep't of Justice to Bill Cook, N.C. State Senator, Dist. 1 (June 10, 2016), https://www.ftc.gov/system/ files/documents/advocacy_documents/comment-federal-trade-commission-staff-antitrust-division-addressing-north-carolina-house-bill436/160610commentncbill.pdf.

9. See id.

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