Legal Forms & Legal Advice

I was speaking at an Evolve Law event in Los Angeles last week, and had a conversation with Derek Distenfield, who operates a business called NextGenJustice. I hadn’t heard of it, but that’s because Derek had changed the name from “Legal Docs By Me.”

THAT I had heard of. Kind of a brick-and-mortar version of LegalZoom, Legal Docs By Me was a place people could go to get basic legal forms to accomplish things like uncontested divorces, name changes, and small business formations. I’d run across the company when I read that the New York Attorney General’s office had cracked down on it for the unauthorized practice of law.

Apparently the company entered into a consent decree with the NYAG and changed its name. Unfortunately, this hasn’t spelled the end of the company’s issues, as the NYAG is now going after NextGenJustice for violating the terms of the consent decree.[ref]The court documents aren’t readily available online, so I can’t tell to what extent the NYAG’s complaints have to do with UPL versus deceptive advertising, but according to the AG’s press release, both seem to be at play.[/ref]

NextGenJustice is also expanding to Florida, where, predictably, it is also facing questions about UPL.

There shouldn’t be any question that selling forms isn’t the unauthorized practice of law. But what about providing advice to those who walk into his locations looking to buy a form? I asked Distenfield how his business handles the questions that are going to naturally come up from buyers – “how do I fill this out,” “what goes in box 12a,” etc.  He says the store employees don’t address these, instead referring customers to local attorneys.

Which is great, I suppose, but why shouldn’t his folks – who aren’t lawyers and don’t claim to be lawyers – be able to answer straightforward questions?

Tom Gordon has an op-ed on this topic in USA Today, and it gets to the heart of the problem: the definition of “the practice of law” has been stretched so far that people and businesses are being prosecuted for doing anything that remotely hints at being “legal.”

This isn’t the only thing that’s keeping people from getting help for their legal needs, but it’s a big factor – along with the rules prohibiting fee-splitting with non-lawyers – that is keeping a lid on innovation and forcing people to choose between services that are either fully-custom or do-it-yourself.

It’s also, as I’ve pointed out before, problematic from a free speech perspective. Answering questions and giving advice is expressive activity, and the fact that bar regulators and police authorities punish it under the banner of professional regulation sounds like content-based speech regulation to me.

There is, unfortunately, little appetite among the lawyer regulators to move to a narrower definition of “the practice of law” that recognizes both the constitutional issues and the traditional functions of being an attorney. But the overreach we’ve seen here may result in change from an unlikely source: the courts. The Supreme Court has never directly addressed the tension between occupational speech regulation and the first amendment; a number of cases winding through the federal courts right now may provide that opportunity – and spell big changes for the Bars.