The “DoNotPay” app, originally launched to script people through the process of fighting traffic tickets, has vastly expanded its scope to include some 15 different areas. DNP founder Joshua Browder has a thread on twitter running down the changes:
Big news! You can now sue anyone (in all 50 U.S states and 3,000 counties), fight corporations and beat bureaucracy with the DoNotPay App! All 15 of the new products are completely free. (1/15) https://t.co/JjH6I3ABjE
— Joshua Browder (@jbrowder1) October 10, 2018
The wringing of lawyerly hands began immediately; here’s just one example:
The difference between you and me is that I’ve been in small claims court as a lawyer. It is awful for many people. I agree there. Your app would not make it any better. Also, it may be ULP. So what I think doesn’t really matter. But what one or more state bars think does.
— Palley (@stephendpalley) October 13, 2018
The general themes of the complaints I’ve seen – which are very familiar from my days at Avvo – seem to be that DNP is engaged in the practice of law, consumers have no recourse when something goes wrong, and that legal issues are far too special and complicated to be left to scripting and algorithms. Let’s address.
The Practice of Law
“The practice of law” is a frustratingly ill-defined term. It is malleable enough to be wielded by lawyers in all sorts of ways to extend the legal monopoly to its broadest extent – lawyers routinely use it to exclude others from providing “legal advice.” But the rub has always been that such advice must be in the context of a client relationship of trust and reliance for it to be “the practice of law.” Attempts to take on non-specific forms of legal advice – books, articles, talks, etc. – have flailed, in several cases with settlements and legislative bailouts saving Bars from sure First Amendment losses.
Why? Because the First Amendment requires that any content-based speech restrictions (apart from a few specific categories not relevant here) survive strict scrutiny – and any limitation or sanction for publishing would be such a restriction.
(And as an aside: there’s also a good argument that the First Amendment even prohibits states from monopolizing for lawyers the sale of individualized legal advice, but I’ll stick to my central point for now.)
DNP is, for all legal purposes, a publishing exercise in that it offers generalized guidance. It doesn’t matter that this guidance is user-centric, interactive, and detailed: there is no client relationship of trust and reliance, no human intervention, no exercise of legal judgment. There’s simply no way it meets any constitutional definition of “the practice of law.”[ref]And consider, too, one of the fundamental reasons why this matters: consumers know the difference between relying on a DIY resource – even a detailed, interactive one – and talking to a trained advisor. Their expectations are a big part of the reason why special duties attach when a client relationship of trust and reliance is created.[/ref]
Many lawyers have made much of “what happens to the poor consumers when something goes wrong? Who can they sue?”
How about nobody?
Not every injury requires a remedy. As I’ve often pointed out, consumers make price/quality trade offs all the time. And they’re making them right now in law: they’re choosing the DIY path instead of engaging with lawyers. One of the things consumers give up, when they choose to rely on books, or court forms, or something their friend’s brother’s girlfriend told them about HER legal issue, is the ability to sue someone for sending them astray with bad advice.
And that’s fine. Consumers should have the right to make this choice.
So: my answer is that while consumer protection and contract law principles could apply to tools like DoNotPay (depending on representations made by those offering such tools, or agreements they make with their users), there’s no reason to require liability as a condition of such tools existing.
[It’s also ironic that lawyers make so much of the availability of malpractice remedies when precisely ONE state (Oregon) requires that its attorneys carry malpractice insurance.]
The Specialness of Legal Issues
The final species of complaint is that legal issues are just far too complex for one-size-fits-all solutions to address. This is so frustratingly wrong it hurts. The bottom line is that most consumer legal issues are simple and straightforward, and thus CAN be met with cookie-cutter solutions, and for many of these consumers such solutions are superior to working with an attorney.[ref]Yes, exceptions abound, which is why lawyers stay employed. But letting these exceptions lead you to believe that ALL legal issues require custom advice is to succumb to a massive case of survivorship bias.[/ref]
For more detail on why this is so, read my piece on why lawyers need to embrace mediocrity, or Bill Henderson’s excellent take on consumer perspective and how expert systems – like LegalZoom – are often the optimal solution for routine legal issues.
I have no idea if DoNotPay is any good, but I applaud any and all good faith efforts to empower consumers to better address their legal needs.
And as for attorneys, I’d like to see a lot more focus on building the value proposition for hiring a lawyer (including adopting attorney-centric expert systems to better and more cost-effectively serve consumers with routine legal issues) than trying to exclude better DIY tools.