North Carolina Bar Opposes Amendment to Define the “Practice of Law”

Greedy Lawyers!
A bill was introduced in the North Carolina legislature that would narrow the definition of the “practice of law” to exclude sell-help legal materials, including books, software, and legal information. [?See House Bill 663?]. The text of the amendment is:

“(b) The phrase “practice law” does?not?encompass any of the following:” …?(2) the design, creation, assembly, completion, publication, distribution, display, or sale, including by means of an Internet Web site, of self-help legal written materials, books, documents, templates, 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. “

The bill was reported out favorably of the Senate Committee on June 24, 2014, but in recent developments, the North Carolina Bar to get this legislation deferred for further discussion?. So consumers loose and the Bar wins again. ?The North Carolina Bar Association is opposing passage of the bill. ??The real reason for this opposition is ?protecting lawyer’s incomes at the expense of easier access to the legal system for consumers.?

Texas has had a?similar exemption from the definition of the practice of law?for years with no demonstrable harm to the public.

It is well documented that 80% of the U.S. consumer public?can’t afford the high cost of legal fees, so self-representation, a constitutional right, is one way for consumers to get access to the legal system. [ North Carolina?Const. Art 1 § 18: ?[?“All courts shall be open; every person for an injury done him in lands, goods, person, or his reputation shall have remedy by due courts of law, and right and justice shall be administered without favor, denial, or delay.” ].

Self-representation?enables consumers to resolve their legal problems at low cost. The?U.S. Legal Services Corporation?has endorsed this approach and funded over 40 states to enable citizens to assemble their own state-specific documents powered by a national document server managed byLawHelp Interactive.com. The Legal Services Corporation has also supported?state-wide legal information Web sites. North Carolina also maintains a?state-wide legal information?Web site to provide tools to self-represented litigants and a?legal forms site?sponsored by the North Carolina Administrative Office of the Courts. ?North Carolina has also automated three sets of interactive forms using the National HotDocs Server designed to enable a self-represented litigant?to a pro se litigant appeal an eviction or file for custody in court without a lawyer.

These are the software and legal information tools that the North Carolina Bar seeks to restrict by not clarifying that the provision of self-help ?legal publications, interactive software, intelligent Web advisors, and other emerging software-powered tools are not the “unauthorized practice of law.”

Instead of making it easier for citizens to exercise this constitutional right, the North Carolina Bar wants to make it more difficult.

A growing body of academic scholarship suggests that the major obstacle to access to the legal system for those who cannot afford legal services is the legal profession itself. Afraid of competition from new forms of legal solutions enabled by the Internet and more powerful software, the unauthorized practice of law committees of state bar associations target non-law firm Internet legal form web sites, non-lawyer legal document preparers, and other innovative means of enabling access on the theory they are protecting the public interest from harm.

The North Carolina definition of the “practice of law” is so broad it is arguably unconstitutionally vague and includes within it almost any act that results in creating a legal document. ?[?See Act?]. Categorizing self-help legal information materials as “the practice of law” is a slippery slope.

In a recent article from Professor Deborah L. Rhode, from Stanford Law School, ?& Lucy Buford Ricca, Director of the Center on the Legal Profession, Stanford Law School, titled:?Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement., where the authors conducted a national comprehensive review of ?unauthorized practice of law enforcement, they conclude that:

A third problem is the lack of focus on the public interest. Although bar leaders and case doctrine insist that broad prohibitions on unauthorized practice serve the public, support for that claim is notable for its absence. ?Outside a few contexts such as immigration, foreclosures, and trusts and estates, it is rare for customers to assert injury, or for suits to be filed by consumer-protection agencies. ?As noted earlier, three-quarters of jurisdictions reported that fewer than half of their complaints came from consumers or clients, and two-thirds of respondents could not recall a specific case of injury in the last year. Of those who did identify a case, almost all involved immigration. So too, the vast majority of UPL lawsuits filed against cyber-lawyer products are brought by lawyers or unauthorized-practice committees and generally settle without examples of harm.

More directly relevant Professor Renee Newman Knake from Michigan State Law School argues in: ?Legal Information, the Consumer Law Market, and the First Amendment,?

“The economic arguments for liberalizing lawyer regulation to facilitate the free flow of information support the First Amendment analysis. Perhaps one state will bravely implement a regulatory structure to expand access to legal information without intervention by the U.S. Supreme Court. If not, as this Article has shown, many of the restrictions governing the organizational form of law practice and the distribution of legal services are constitutionally vulnerable to the extent they constrain the creation and distribution of legal information…”

Marc Lauritsen writing in Chicago Kent Law Review, in an article titled,?Liberty, Justice and Legal Automa?, (See also,?Are We Free to Code the Law?)?, concerned that the obstructionism of the organized bar will chill innovation when access to the legal system has become critical,?asks whether we are free to code the law.

“It is in the enlightened interest of lawyers, as well as the best interest of society in general, to enable programmatic expression of legal knowledge. ?We should be free to write code, run code, and let others run our code. If concerned citizens, law students, and entrepreneurs want to create tools that help people access and interact with the legal system, the government should not get in the way. ?Are citizens at liberty to create and share software that helps others understand and interact with the legal system? Are we free to code the law? ??We certainly should be.”

Professor Catherine J. Lanctot. from Villanova Law School concludes in an article on the same subject [?“Does LegalZoom Have First Amendment Rights: Some Thoughts about Freedom of Speech and the Unauthorized Practice of Law”?Temple Political & Civil Rights Law Review?20 (2011): 255. ], that even if one assumes??that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees.

“To the the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article concludes with a “caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.”

Conclusion: ?10 reasons the North Carolina Bar should support this amendment to the definition of the practice of law:

  1. The legal profession will be viewed more favorably as on the side of the consumer, rather than on then in the side of their pocket books;
  2. A challenge to a publisher that legal software is the unauthorized practice of law is likely to fail on 1st Amendment grounds;
  3. There is a difference between legal software (a “publication” ) and a lawyer providing legal advice. (‘conduct”);
  4. Technology innovation will be encouraged for the benefit of both consumers and lawyers;
  5. It will be clear that the publication of consumer facing web-enabled interactive legal forms by legal aid agencies in North Carolina, and other public agencies, ?is not the unauthorized practice of law;
  6. The U.S Department of Justice and the U.S. Federal Trade Commission will have less reason to accuse the North Carolina Bar of anti-competitive behavior; [?See letter to Massachusetts Bar Association from the FTC on this subject?];
  7. Bar leadership can demonstrate that they understand that the legal profession is changing and can help prepare their members for 21st century law practice;
  8. With disclaimers, a consumer will understand the difference between using an interactive software application and receiving advice from a “live” person;
  9. The North Carolina Bar can avoid the charge it restricts access to the legal system;
  10. The North Carolina Bar can avoid the charge it is out of step with contemporary technological developments.

Free 30 Day Trial SmartLegalforms

*Disclosure: SmartLegalForms, Inc.,???provides web-based interactive self-help legal forms directly to consumers and to non-lawyer companies nationally and in the state of?North Carolina. [?See for example?]

Law That You Can Afford

SmartLegalFormsThis blog is authored by members of the SmartLegalForms team, and edited by Richard S. Granat, CEO/SmartLegalForms.

This blog is intended for legal document preparers and legal document technicians and their customers. ?It will cover new developments in the delivery of legal services to individuals of moderate means and the broad middle class in the United States.? Both sectors of the population have been priced out of the market for legal services and therefore access to the legal system. It will unauthorized practice of law issues and new initiatives to license a new class of professionals to serve the public directly.

At the?intersection of Internet technology and the legal industry there are innovations that are resulting in broadening access to justice. State Courts, the National Legal Services Program through its?TIG Program, lawyers delivering unbundled legal services online, alternative providers of legal solutions such as LegalZoom, are all exploring ways to broaden the market for legal services by finding effective solutions for what has been called, “the latent market for legal services.”? New Web sites such as ExpertBids, LawPivot, and AttorneyFee.com are offering consumers new tools and approaches for getting the information they need to become effective purchasers of legal services.

This blog is focused on helping consumers and small business find and use new tools for accessing the legal system at a price they can afford. We will profile new entrants?to the legal that are disruptive of the old order, identify useful tools that help consumers pay fair and reasonable prices for legal solutions and test out new online services that can deliver a legal solution at prices that people can afford. Legal service affordability is the theme of this blog.

Free 30 Day Trrial- SmartLegalForms

 

How Do Lawyer Bidding Sites Work?

Let's Make a Deal

Let’s Make A Deal

Recently several Web sites have emerged that enable consumers to bid for legal services. Examples include: ExpertBids and? Shpoonkle. (Don’t ask me how to pronounce? it). They all work pretty much the same way.

You submit a description of your project or the service you want, your location and your estimated budget. You create a secure account with a user name and password. Your service request is then posted or published to a lawyers who have registered for the service so they can bid on your work. When a lawyer bids for your work, you receive an email (each bid includes a rate, a description, and the lawyer’s profile, rating and client reviews). When the lawyer bids, whether bid by the hour or fixed price, you receive an email which includes a rate, a description, and the lawyer’s profile, rating and client reviews. The process gives you options and a basis for comparing how different lawyer;s will submit bids and pricing for similar work. The process is always free to the potential client. Once you are connected to a lawyer you can continue your conversation either online or off-line. The sites enable you to communicate with the lawyer online directly, but often you don’t get any free legal advice or any legal service until you accept a retainer agreement and the lawyer/client relationship is established. This is a requirement of the Rules of Professional Responsibility in every state that regulate lawyers and the legal profession.

For law firms that have learned how to offer legal services for common legal matters for a fixed fee, these bidding sites could be another channel to the consumer and potential clients. These law firms, often virtual law firms, are low-cost producers of legal services, and can out bid more traditional legal firms without sacrificing quality or their profit margins.

Some of these law firms offer what is called, “limited legal services”, which enable these law firms to offer a low cost solution to consumers, but often consumers have no understanding of this concept. See for example the law firms listed in the SmartLegalForms Directory of? Virtual Law Firms. We think that the bidding sites should have articles and information on their web sites describing the “limited legal service” concept as this would be way to educate consumers about another way to cost effectively buy legal services.

A problem that we see with the bidding sites that we reviewed is that there is no easy for the consumer to describe that they want “limited legal services“, as distinguished from traditional legal services. There are options for bidding by the hour, or by the project, but no option for limiting the scope of representation. “Unbundling legal services“, is a relatively new idea, but many states (more than 35) have already passed amendments to their Professional Rules of Responsibility that enable law firms to offer “limited legal services” as long as the retainer clearly defines the scope of representation.

It is too early to predict whether these “bidding sites” will survive. In the “dot-com boom and bust” era, there were several experiments with lawyer bidding, but all the sites failed because they could generate enough revenue.

Susan Cartier Liebel, the President of Solo Practice University has written a good blog post analyzing these sites,? that is worth reviewing by consumers who are interested in this approach to securing a lawyer.

How Does AttorneyFee.com Work?

attorneyfee.comAttorneyFee.com – the Kayak of Legal Fees
by
Richard Granat

This is another post, in a series of blog posts, that are designed to help consumers understand how Web sites in the legal industry work and the value they offer.

BeiBei Que, the co-founder of AttorneyFee.com,? calls the site a Kayak for Legal Fees. Like Kayak, which is a price comparison engine for air plane fares, AttorneyFee.com’s web crawlers search the web for law firms that advertise their legal fees, and then display these these law firms by type of subject matter and location.

Legal Fee Transparency
This is an interesting concept because it enables a consumer or small business searching for a lawyer to more easily compare legal fees for typical transactions, or to compare hourly rates, between lawyers for similar types of work. The site is going to be more useful for consumers and small business than it will be for major corporations purchasing legal services from very large law firms.

On the other hand, I can see? law firms creating feature rich service packages for the legal work involved in a hi-tech start-up, or a Series A financing.? This is reasonably complex work that still lends itself to a fixed price. Taking the mystery out of the pricing for this kind of work would reduce the friction that it takes to do an initial financing, probably expanding the market for this kind of legal work.

Many lawyers think that advertising their legal fees is unprofessional, but the reality is that consumer behavior has changed dramatically because of the Web. Consumers are now accustomed to doing price comparisons over the Web, and for certain kinds of transactions, particular more routine transactions that are very similar in nature, price is a factor because the skills to generate certain kinds of work are comparable from lawyer to lawyer.

For example,? you don’t have to be a “rocket scientist,” or be a “bet your company lawyer” to represent a client in an uncontested divorce, so why should one lawyer charge $2,000.00 and another $350.00. Consumer’s generally don’t know any better, so they choose the first lawyer they come upon and have no basis for comparing the work of one lawyer with another. Lawyers are notoriously reluctant to quote fees. Often you have to come in for a”Consultation” and then the lawyer drops a fee on you. This will change as more lawyers set-up shop on the Web as virtual law firm and charge fixed fees for limited legal services, (See a listing of fixed fee, online law firms at the? เล่นพนันบอลเป็นอาชีพSmartLegalForms Law Firm Directory.)

The impact of this kind of a web site will be to flatten or compress legal fees for similar transactions. But in my view this is a good thing as transparency in any business, in my opinion is a good thing, and the pricing for certain kinds of transactions is much too high for what you get.

Consumer’s are aware of pricing from non-lawyer document preparation sites, where for example the going rate seems to be around $250.00-$299.00 for an uncontested divorce, but? no legal advice is included. The same price clarity has not been true of law firms. (Why anyone would pay $299.00 for a set of uncontested divorce forms without any legal advice, with you can purchase the same forms for $59.00 is beyond me, but that’s the subject of another blog post.).

The AttorneyFee.com Web site is simple to navigate. Register, search by matter and? location and? a list of lawyers is generated in your state displaying the prices for certain types of work.

AVVO- the lawyer's comparison web siteThe site is evolving and adding new features monthly. At my last look, the site had integrated reviews and profiles from AVVO – the sometimes controversial lawyer rating site. This makes a lot of sense as the Web site have the same goal – helping consumers make more informed choices about selecting a lawyer.

Limitations

There are some areas of the site that need improvement.

First, the site could have more detailed information about the services that a law firm offers in relationship to a price. For example, displaying the fact that one law firm charges $299.00 for an uncontested divorce, and another charges $1,500.00 would be more helpful if the information were also available that in the lower priced situation the party represents them selves at the divorce hearing, and in the higher priced situation, the attorney represent that represented party at the hearing. The additional information would? enable a more accurate comparison? —? comparing apples to apples, rather than apples to oranges.

A second issue, related to the first, is that the site lumps all legal services into a single category and doesn’t give due recognition to the new concept of “unbundled” or limited legal services — a fast emerging approach to pricing legal services for a fixed fee.

Summary

Despite these limitations, AttorneyFee.com is making a major contribution towards providing a visible data base about how much it costs to solve legal problems. Data by itself can be a powerful incentive to rationalizing the pricing of legal services for consumers and small business. No legal Web site has attempted to offer comprehensive pricing information over a range of legal matters. So this is a first and a major advancement towards peeling back the Wizard’s black curtain.

I hope AttorneyFee.com find’s a firm footing as it explores a way to make money from the site.? The work they are doing has value but it comes at a cost that must be covered.

How to Evaluate a Legal Information Web Site

American BAr Association Best Practices for Legal Informaton Web SitesThere are now thousands of legal web sites on the Internet that range from non-lawyer web sites that offer legal information and legal forms to law firm web sites. To help users evaluate the quality of the legal information offered by these web sites, the House of Delegates of the American Bar Association approved in 2003, best practice guidelines for legal information web site providers. These guidelines apply to both law firms and non-lawyer web sites, from state-wide legal information web sites operated by public agencies, to court web sites, to legal sites run by profit-making companies.

The guidelines can be found here and also on the SmartLegalForms web site Many legal information information providers embrace and support the guidelines either explicitly or in principle. Even though the guidelines were published 9 years ago, they have stood the test of time and are common sense rules to guide non-lawyer users on how to evaluate the quality of a legal information web site.

Here is a quick summary of the best practice guidelines:

  1. Full and accurate contact information should be available on the site.
  2. The date that substantive legal content material was prepared or last review should be available.
  3. The jurisdiction to which the site’s content relates should be clear.
  4. There should be a disclaimer that legal information is not the same as legal advice.
  5. There should be links to other resources that will help a user solve their legal problems, and where appropriate citations to relevant case law and legislation should be available.
  6. Where appropriate, site should provide users with information on how and where to obtain legal advice and further information.
  7. Providers should obtain permission to use content from other providers.
  8. There should be a clear terms and conditions of use available on the site.
  9. Sites should clearly and conspicuously provide users with their privacy policies and policies on security of communications.

These best practice are really minimum standards. Credible legal information web site providers will satisfy these standards whether they explicitly state their support for the ABA Guidelines or simply incorporate these principles into their Web site design and publication process.

We would be wary of legal information web sites that don’t at least try to comply or support these these best practices.

To these best practices, we would add the following:

  • Look for a BBB – Better Business Bureau Seal which will act as a verification of the business practices of the vendor and an avenue for registering complaints.
  • If services or information is sold from the site, in must be from a secure web space. Look for https:// in your web browser to make sure that you are in a secure web space that requires a user name and password for log-in. Look for the display of an SSL Certificate which means that all communications between the web site and the server are encrypted and secure.

 

Legal Services Funding Cut by House-Senate

A congressional agreement for Fiscal Year 2012 funding would provide $348 million to the Legal Services Corporation (LSC). Established by Congress in 1974, LSC is the single largest funder of civil legal assistance in the nation.

Of that, $322.4 million would fund basic field grants for the delivery of civil legal assistance to low-income Americans. The impact of this agreement would reduce LSC’s funding by 13.9 percent, basically reducing LSC’s funding to 2007 levels. The House is scheduled to take up the Agreement on the Floor next week. ?The impact of this cut in the funding is to reduce access to the legal system for low income individuals and families severely. ?At a time of economic distress, legal needs are increasing, not contracting. Can we have a just society, when so many individuals are excluded from access to the legal system? Can we be a democratic society with so many individuals excluded from our court system?
Write to your Congressman today and support LSC funding.

 

What is a LIfe Estate?

What is a Life Estate?A life estate is property that is owned by an individual only through the duration of his or her lifetime. When the individual dies, the ‘estate’ (or real property) is returned to the original owner or the other people named in the life estate agreement (called ‘remaindermen’). Think of a life estate as a temporary ownership agreement.

When would you want to consider a life estate arrangement? The estate planning tool usually comes into play when there is a desire to pass down real property–like a family?home–to specific heirs without excessive probate and other legal complications.

Here’s a common scenario:

      Pam is now widowed and has lived in her home for 40 years. She wants to pass the home down to her son Joe when she passes away. Pam could consider transferring the home’s title to Joe now, while retaining a life estate in the home. This way, Pam can continue living in the home and carrying out all the home-owner duties she always did (such as collecting rent and paying all taxes and expenses). This makes Pam the ‘life tenant’ of the home. When Pam passes away, the life estate agreement expires and home ownership transfers to Joe.

Second marriages are a common reason families turn to life estate agreements as well. If Pam had gotten remarried, she may prefer to allow her new spouse to live in her home for the rest of his life even if she passes away first. She can give her spouse a life estate that will allow him to continue to live in the home until he passes away or chooses to move. At that point, the home can pass on to Joe as it would have before.

There are certain limitations that must be considered when weighing the life estate option. Life tenants are prohibited from damaging or devaluing the land, a limitation which can cause tension among family members in such an arrangement (with the owner often accusing the life tenant of “letting the place go”). But it’s a worthy consideration for many families–one that should certainly be investigated with the assistance of an?estate planning attorney. This is an example of a situation where you might want to consult an estate planning attorney rather than do it yourself.

A good resource for finding affordable attorneys is the Directory of Online? Law Firms that appears on this Web site. These attorneys? offer fixed fee legal services online for an affordable and fixed fee. You can purchase legal advice online by? the questions or issue and avoid spending hundreds of dollars for a consultation or making a commitment to a long term pre-paid legal plan where you are required to make a monthly payment whether or not you use the plan’s services.