When Public Policies Collide: Legal "Self-Help" Software and the Unauthorized Practice of Law

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INTRODUCTION

As computer technology advances at an astonishing rate, the law often struggles to keep pace with the corresponding development of new issues of law or, at the very least, new twists to existing law. Such is the case with the unauthorized practice of law, a creature of both state constitutional and statutory construction. Throughout the years, defining and regulating the practice of law has been the focus of many attempts by state legislatures and courts alike, with the result being that there is no one universally accepted definition.(1) Legal "self-help" books and instructional "kits," facilitating the production of legal documents, have often been scrutinized for potential unauthorized practice violations.(2) It is no surprise, then, that publishers of software used for the creation of legal documents have also been examined for possibly engaging in the unauthorized practice of law.(3) For instance, in 1999 a federal district court judge held that Quicken Family Lawyer 8.0 ("QFL 8.0") and Quicken Family Lawyer 99 ("QFL 99") violated Texas's unauthorized practice statute.(4) An injunction was granted banning the further sale of the software in Texas,(5) but subsequent legislation effectively nullified the injunction and authorized the sale of the product.(6)

This note examines the unauthorized practice of law as it relates to legal "self-help" computer software ("legal software").(7) Part I discusses the unauthorized practice of law, its history, definitions and underlying policies, as well as the various methods of state regulation and enforcement. Part II examines the unauthorized practice of law in the context of legal "self-help" books and "do-it-yourself" kits, the logical predecessors of today's legal software. The two approaches used to analyze these products for possible unauthorized practice violations (the "majority state" approach and the "minority state" approach) are identified and discussed. Part III summarizes and discusses the Texas Quicken Family Lawyer case, since it is particularly instructive as to the issues raised by legal software.

In Part IV, legal software, specifically the most updated Quicken product, Quicken Family Lawyer 2000 ("QFL 2000"), is examined and discussed in relation to the various definitions of the practice of law. The conclusion is drawn that legal software can and has been found to constitute the unauthorized practice of law in minority states, and might very well be found to constitute the unauthorized practice of law in majority states as well. Part V discusses whether legal software should be banned or regulated. This evaluation is conducted in the context of reconciling and honoring the two important public policies involved with legal software: (1) providing greater public access to legal information and assistance, and (2) protecting the public from products that may be inaccurate, harmful, and which may foster misplaced consumer reliance. It is argued that the three-pronged test suggested by the American Bar Association's Commission on NonLawyer Practice should be applied in making this evaluation.(8) That test involves (1) assessing the risk of harm to the consumer; (2) assessing the ability of the recipient to evaluate the provider's qualifications; and (3) determining whether regulation would produce a net public benefit.(9) Employing this analysis, it is contended that with appropriate regulatory requirements, mostly in the area of comprehensive disclosure language, legal software should be allowed for sale in every state, since sale under such conditions would honor the two aforementioned public policies. Finally, there is a brief discussion about how state bar associations can move to the forefront of the legal software phenomenon and, in the process, further both public policies, as well as increase the business opportunities of many of their members.

I. WHAT IS THE UNAUTHORIZED PRACTICE OF LAW?

Historically, under the separation of powers doctrine, state judiciaries have been responsible for defining and regulating the practice of law. …