Chapman Law Review
SKIRTING THE ETHICAL LINE: THE QUANDARY OF ONLINE LEGAL FORMS
Copyright (c) 2012 Chapman Law Review; Lindzey Schindler
Technology is advancing and its progress has not left the legal profession unaffected. Websites are one of the most effective means of reaching the public at large, so much so that it is more common for a law firm to have a website than not to have one–firms without a website are at an incredible marketing disadvantage as compared to those firms that have one. In recent years, however, lawyers’ use of websites has gone beyond making a firm’s presence known–their websites now allow the public to generate their own legal documents by simply filling out a standardized form online, resulting in saved expenses, but also creating the potential for future trouble.
One of the best-publicized websites that allows consumers the option to create their own legal documents at “affordable” rates is LegalZoom.com (“LegalZoom”). Co-founded in 2001 by Robert Shapiro, LegalZoom provides online services to all fifty states and guarantees 100% satisfaction on all of its trial-tested forms, which range from business incorporations and copyrights to divorces and wills and trusts, with much more in between. Despite the satisfaction guarantee and comprehensive legal disclaimer, LegalZoom has been named in class action lawsuits initiated by private attorneys who contend that LegalZoom’s website provides services amounting to the unauthorized practice of law.
In 1999, a federal district court in Texas similarly dealt with an issue of potential unauthorized practice of law in regard to Parsons Technology, Inc.’s Quicken Family Lawyer software–software that contained over one hundred legal forms for at-home use. The court held that the software constituted the unauthorized practice of law despite its caution that the information provided was not individualized, and that personal judgment should be utilized in deciding whether to consult a lawyer. However, the Texas Legislature soon overturned the court’s decision when it passed a statute declaring that as long as a website, book, or software program “clearly and conspicuously” stated that it was not a substitute for the advice of a lawyer, the product would not be included within the meaning of the “practice of law;” therefore, neither its production, distribution, nor use could be said to be an unauthorized practice of law. Following this legislative enactment, the Fifth Circuit Court of Appeals vacated the district court’s injunction on the Quicken Family Lawyer software.
Not all states agree with Texas on the definition of the practice of law, which is one reason LegalZoom remains susceptible to the class action lawsuits it currently faces. It is also possible that lawyers have tried to challenge LegalZoom based on a desire to protect the public from potentially damaging legal products. But, perhaps more realistically, attorneys with specialized practices–such as estate planning–may want to protect their practices against more affordable competitors, namely purveyors of online legal forms. This Comment addresses whether online, do-it-yourself legal services comply with today’s ethical guidelines, or if today’s ethical rules even have an answer to this quasi-practice of law.
Part I of this Comment summarizes the practices of online, do-it-yourself legal products–which are available to the general public–and discusses in particular the wills and trusts services offered by LegalZoom. Part II considers the recent ABA Formal Opinion 10-457 regarding the ethical use of websites, and the relevant Model Rules, as they apply to these types of online do-it-yourself legal services. Part III proposes legislation to deal with the discrepancies between the online practice of law and the concerns of laypeople and lawyers alike.
I. Do-It-Yourself Legal Documents: The Devil is in the Disclaimer
Despite the materialistic world we live in, when a person dies, none of their physical possessions go with them (save those with which they may be buried). In the first half of the twenty-first century alone, it is estimated that somewhere in the range of $10-41 trillion will be inherited in the United States; thus, it is not surprising that societies ranging from ancient times to the present have developed rules and regulations for such succession purposes. Furthermore, it has been estimated that as many as fifty percent of Americans die intestate–meaning without a will–thus subjecting the decedent’s estate to probate and state intestacy laws. Some people die without a will because they wanted to avoid thoughts regarding their own mortality or they did not want to invest in something from which they would not personally benefit. Many people, however, likely find that creating a will in consultation with an attorney is cost-prohibitive, as estate planning lawyers charge hundreds or thousands of dollars per estate, depending on the complexity of the estate. For young families just starting out, or families with little cash to spare, having a do-it-yourself will is better than having no will at all.
Since there is such a strong feeling amongst those in the estate-planning community that all people should create a will and make provisions for incompetency and death, it is not surprising that self-help legal techniques have emerged to assist people through the process. Many bookstores and libraries carry self-help books that educate a non-attorney audience on how to create their own wills, but scholars have called the validity and effect of these products into question. Similarly, critics have raised concerns that these books are not written with a particular state’s laws in mind, and that the motivating factor behind publishing these tools is profit rather than concern for the public. But as bookstores have begun to close their doors, and as the Internet plays a more prevalent role in the lives of Americans, it is only natural that do-it-yourself legal services would evolve and become web-based products.
Enter online legal document services. For more than a decade, websites such as LegalZoom.com, Nolo.com, and LawDepot.com, to name only a few, have been offering inexpensive alternatives to paying for the experience, expertise, or assistance of an attorney when creating a will or trust. LegalZoom allows a consumer to create their own living will for as little as $40 per person, and a living trust for roughly $250, which is a far cry from the thousands of dollars a lawyer might charge. However, these low prices come with strings attached.
LegalZoom has a ten-paragraph disclaimer that, among other things, states that LegalZoom is not a law firm, its services are not to be substituted for the advice of an attorney, and that it does not act as the consumer’s attorney. The disclaimer further asserts that the website does not provide legal advice, but only self-help services at the consumer’s specific direction, and that it cannot engage in the practice of law. The disclaimer also states that while it provides general information on common legal issues, no attorney-client relationship is established by use of the site. However, the service does include a review of the customer’s answers for completeness, spelling and grammar, as well as internal consistency of names, addresses and the like. The disclaimer makes clear that the law changes frequently, and that while efforts are made to keep the forms on the website up-to-date, they are not guaranteed to be current, or even accurate, in every jurisdiction. Lastly, the disclaimer states that LegalZoom should be used at the consumer’s risk, as “LegalZoom is not responsible for any loss, injury, claim, liability, or damage related to [the] use of [the] site.” Furthermore, before receiving their legal documents, the consumer must acknowledge that LegalZoom did not supply the consumer with any advice, explanation or representation about any legal rights. However, even these attached strings do not keep consumers away, as LegalZoom’s homepage boasts of over one million satisfied customers.
Despite the impressively detailed disclaimer to which the user must agree before any sort of product is completed for the consumer by LegalZoom, some might argue that any sort of will that denotes the deceased’s intent is better than no will at all. Even holographic wills–un-witnessed wills that are handwritten by the testator –are permitted in twenty-seven states despite the lack of legal guidance needed to create one. However, states that do not recognize the validity of holographic wills, such as Washington, Alabama, and Missouri, would probably not argue that any will is better than no will at all, and in fact have tried to curtail LegalZoom’s presence in their states. Moreover, even North Carolina, a state that permits holographic wills, has issued a cease-and-desist letter to LegalZoom.
For example, in 2009, plaintiffs Todd Janson, Gerald T. Ardrey, Chad M. Ferrell, and C & J Remodeling LLC sued LegalZoom in Missouri. They alleged that LegalZoom engaged in the unauthorized practice of law, that LegalZoom’s charging of fees for alleged assistance in the preparation of legal documents violated the Missouri Merchandising Practices Act (MPA), section 407.010, et seq., of the Revised Statutes of Missouri, and they asserted a claim for money had and received with respect to fees paid to LegalZoom. Furthermore, the court granted plaintiff’s Motion to Certify as a Class. On August 2, 2011, the court denied LegalZoom’s Motion for Summary Judgment (arguing that, as a matter of law, it did not engage in the unauthorized practice of law in Missouri). The court found it problematic that LegalZoom sold not only a good, but also a service, when LegalZoom said in its advertisements, “[j]ust answer a few simple online questions and LegalZoom takes over. You get a quality legal document filed for you by really helpful people.” On August 12, 2011, the parties informed the court via teleconference that they had agreed to settle the matter. On September 28, 2011 a Motion for Order Approving Class Action Settlement was filed on behalf of all plaintiffs, as well as suggestions in support of the Motion filed on behalf of LegalZoom. While the settlement is not finalized at the time of this Comment, if the plaintiffs’ suggestions are any indication of joint work toward settlement on behalf of both parties, it appears that LegalZoom has agreed to pay the class members six million dollars, and make substantial changes in its future practice within Missouri, including a free consultation with a Missouri licensed attorney for each future purchaser of a LegalZoom product. But while Missouri has seemingly neared the end of its quandary with LegalZoom, other states have yet to determine whether they too feel the company is engaging in an unauthorized practice of the law.
Despite claiming at least one million success stories and offering a 100% satisfaction guarantee, LegalZoom probably has not provided every user of the company’s services with a product best suited for their individual needs. David Hiersekorn, an estate planning lawyer at Red Hill Law Group, PC in Santa Ana, California, took it upon himself to log onto LegalZoom.com as a customer to ascertain what sort of results he would get if he used the services offered by the company to create his will. He described his life as fairly basic; at the time he used the product he was a 39-year-old married man with a home, a Subchapter “S” corporation, and an individual retirement account. His wife had a 401(k) through her work, and together they had two children and a dog, as well as one son from his prior marriage. Hiersekorn’s end product was less than satisfactory for his needs–he was told he did not have the option to place his S-Corp stock in a living trust, (which he explained was incorrect), he was told he could put his and his wife’s retirement accounts into a trust and name the trust as a beneficiary of the retirement account, (which he explained was true but that the tax consequences were severe if not done properly), and the trust had the effect of virtually guaranteeing that his son from his previous marriage would be disinherited should he die before his wife (an undesired outcome), amongst other issues. Hiersekorn determined that using LegalZoom would have cost him “tens of thousands in probate fees and potentially hundreds of thousands in taxes.” The question remains if under current ethical rules, a service with the potential for such missteps and mishaps is, or should be, allowed to continue selling its services.
To answer the question of whether it is ethical for an organization like LegalZoom to provide services that can have such potentially harmful results as demonstrated in the Hiersekorn example above, one should first evaluate the ethical rules and principles that govern lawyers’ actions. In order to assist those practicing or, perhaps controversially, not practicing in the field of law, the American Bar Association (ABA) has adopted the Model Rules of Professional Conduct (“Rules”) to guide lawyers as it strives to define ethical conduct to protect the public. Forty-nine of the fifty states have adopted the Rules, while California is the only state to adopt its own rules of professional conduct. The Preamble to the 2011 Rules established that, as lawyers play an essential role in the preservation of society, every lawyer is responsible for observing the rules, the rules do not exhaust the morals and ethics a lawyer should consider in their work, and failure to comply with the rules gives basis for discipline. It also established that a lawyer’s conduct should conform to the requirements of the law, and that a lawyer should be competent, diligent, and maintain relevant communication with clients in regard to the matter of representation. The ABA’s Standing Committee on Ethics and Professional Responsibility also issues formal written opinions to construe the Model Rules of Professional Responsibility, which, while not binding on any court, are considered to be highly persuasive authority on ethical matters that arise in the legal profession.
The Rules govern the ethical considerations of the practice of law when dealing with clients, for the protection of clients. But in LegalZoom’s disclaimer, the company states that it does not practice law, but rather provides information, and that it does not form client relationships with the consumers who use its services. It is uncertain whether any law-related service can or should be allowed to disclaim such accountability, but a closer look into ABA Formal Opinion 10-457, sections of the Rules, and the Restatement of the Law Governing Lawyers should help to provide a clearer answer that the services currently offered by LegalZoom are not entirely ethical under lawyer standards of ethics.
A. Has an Attorney-Client Relationship Formed?
Attorneys owe certain ethical duties to their clients, which are set forth in the Rules, and it is therefore imperative to establish whether LegalZoom has formed an attorney-client relationship with the users of its website in order to determine whether the company should be held to the ethical guidelines established in the Rules. To determine whether LegalZoom has created an attorney-client relationship with those using its services, it is important to review Model Rule 1.18–the rule governing a lawyer’s duties to prospective clients–with a narrow scope of interpretation, while still acknowledging its broad policy purpose. Comment 2 of the rule explains that “[a] person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ‘prospective client’ within the meaning” of the rule. However, a lawyer cannot avoid the obligations of Rule 1.18 simply by making a blanket statement that there is no lawyer-client relationship until both the lawyer and the client consent to create such an agreement. Despite engaging in what could arguably be labeled as more of a bilateral than a unilateral exchange of information (because document assistants at LegalZoom review the user’s submitted information for spelling, grammar, and consistency before providing the finished product), users of LegalZoom do not likely form a reasonable expectation that an attorney-client relationship exists with the company, because the disclaimer that such a relationship will not exist must be agreed upon by the user before the requested document can be purchased. Still, Comment 9 of Rule 1.18 tells lawyers that the duty of competency applies when assistance is given to a prospective client on the merits of a matter, set forth in Model Rule 1.1. As the very first substantive rule of the Model Rules of Professional Conduct, Rule 1.1 directs a lawyer to provide competent representation to a client, which requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation at hand. A person could reasonably believe that LegalZoom is assisting them on the merits of their needs, since it provides necessary forms, checks the forms for consistency, and provides future assistance on those same forms should the need arise, thus necessitating at least the required competency set forth in Rule 1.1.
Furthermore, the Restatement of the Law Governing Lawyers lends additional support to the idea that an attorney-client relationship has been formed between LegalZoom and its users based on the user’s reasonable belief of the nature of the services provided. Section 14 of the Restatement provides that a relationship of client and lawyer arises when “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person and . . . the lawyer manifests to the person consent to do so,” an arrangement that LegalZoom could be said to be engaged in (i.e. offering documents that hold up in courts of law at the request of paying clients). While Section 19 of the Restatement imparts that “a client and lawyer may agree to limit a duty that a lawyer would otherwise owe to the client if: (a) the client is adequately informed and consents; and (b) the terms of the limitation are reasonable in the circumstances,” it could be argued that the terms of limitation are not entirely reasonable in the circumstance of people looking for affordable solutions for their legal needs since they are giving up their complete right to file a malpractice suit against the company. Model Rule 1.2, Comment 7 clarifies that while this limitation on duties is allowed–provided the requisite reasonableness and consent exist–the agreement for limited representation does not exempt a lawyer from the duty to provide competent representation. As demonstrated in David Hiersekorn’s trial run of the service offered by LegalZoom for his own needs, it is clear that at least in his case, competent service would not have been provided.
B. Lawyer Websites Can Create Attorney-Client Relationships
LegalZoom’s website seems to offer more than just legal information, but rather legal advice; that fine line which, when crossed, establishes an attorney-client relationship. The ABA Formal Opinion 10-457 on Lawyer Websites is the Standing Committee on Ethics and Professional Responsibility’s most recent view on “some of the ethical obligations that lawyers should address in considering the content and features of their websites.” The opinion speaks about lawyers using their websites to give information about the law, it addresses when website visitors inquire about legal advice or representation, and it discusses when lawyers disclaim obligations to website visitors. Formal Opinion 10-457 can be read to show that despite the disclaimer agreed to by the user of LegalZoom, an attorney-client relationship has been formed between the company and the user based on the interactive relationship the company engages in with its users.
The opinion acknowledges that lawyer websites are an incredibly useful tool to assist the public in understanding matters of law and to inform the public on how to obtain legal counsel for various issues in their lives. However, the opinion warns that no precise line distinguishes legal information from legal advice. For instance, a lawyer “who answers fact-specific legal questions may be characterized as offering personal legal advice,” but “[a] lawyer who poses and answers hypothetical questions usually will not be characterized as offering legal advice.” In order to avoid misunderstanding, the opinion advises that it would be prudent for lawyers to warn visitors not to rely on the legal information provided as legal advice, but rather that the advice is general in nature.
In its next section, the opinion explains that “inquiries from a website visitor about legal advice or representation may raise an issue concerning the application of Rule 1.18 (Duties to Prospective Clients).” Rule 1.18(a) defines a prospective client as “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” Either the lawyer or the potential prospective client can initiate this initial communication. Without any cautionary language, a lawyer’s website that provides an electronic form encouraging visitors to submit a personal inquiry about a proposed representation invites submission of confidential information, and might indicate that a lawyer has agreed to discuss a possible attorney-client relationship.
In its last section, the opinion discusses warnings or cautionary statements intended to limit, condition, or disclaim a lawyer’s duties to its website visitors. It states that limitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed, and not misleading. Furthermore, these warnings may be used to avoid a misunderstanding by the website visitor that an attorney-client relationship has been formed, that the visitor’s information will be kept confidential, or that legal advice has been given. The information must be conspicuously placed to assure that the visitor is likely to see it before proceeding. However, the Committee boldly makes its final declaration in the last line of the opinion by stating that a limitation, condition, waiver, or disclaimer may be undercut if the lawyer acts or communicates contrary to the warning on its website.
This opinion is consistent with the Model Rules’ policy to protect lawyers from unwittingly forming relationships with prospective clients, but more importantly, to protect the public from unethical legal practices. With this policy in mind, it can be argued that an attorney-client relationship has been created between those who use the services offered by LegalZoom’s website and the company itself, despite the disclaimer that is prominently featured on the website in various locations (and to which the user must agree before completion of the legal document transaction). After a website visitor has filled out the legal questionnaire for the service of their choice, LegalZoom’s document assistants review the answers for spelling, grammar, and consistency before compiling the final document. Furthermore, with the optional purchase of “Legal Advantage Plus,” the LegalZoom website visitor receives the added features of attorney support, annual legal checkup with an attorney, unlimited revisions to the trust through LegalZoom, secure storage and delivery of the trust, and 25% savings on additional attorney services. Whether narrowly reading into the definition of “advice” to mean giving information, or broadly defining the term to mean taking care of a person’s legal needs, it appears that LegalZoom does more than simply provide information to those who purchase and reasonably rely on the services it provides.
C. Law-Related Services Are Subject to Ethical Guidelines
Model Rule 5.7 should also be examined in determining whether an attorney-client relationship has been established between LegalZoom and its users, as the rule describes a lawyer’s ethical responsibilities regarding law-related services–an area that LegalZoom seems to be dabbling in. Paragraph (a) of the rule states that a “lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services . . . if the law-related services provided” display either of two characteristics. The Rules will apply: (1) if the law-related services are provided “by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients,” or (2) if the law-related services are provided in “other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.”
Once again, it appears LegalZoom has instituted measures to properly disclaim that its services create an attorney-client relationship. However, a closer reading of the Rules’ comments and tangential rules makes it clear that LegalZoom has ethical obligations to its users under either section (a)(1) or (a)(2) of Rule 5.7. First, under paragraph (a)(1) of the rule, it could be argued that since LegalZoom claims that it only offers the website’s users information rather than advice, it is engaging in a law-related practice not distinct from the lawyer’s provision of legal services to its clients who are not purchasing products through its website. If true, LegalZoom should therefore be subject to the Rules of Professional Conduct because the users of LegalZoom would necessarily be receiving legal services not distinct from the legal services the company’s owners offer to their non-website clients. Second, Rule 5.7, Comment 8 elucidates that the requirement of disclosure imposed by section (a)(2) of Rule 5.7 sometimes cannot be met when legal and law-related services are closely entwined. In such a case, “a lawyer will be responsible for assuring that both the lawyer’s conduct and . . . that of nonlawyer employees in the distinct entity that the lawyer controls complies in all respects with the Rules of Professional Conduct.” Since LegalZoom offers services that minimally can be described as law-related, LegalZoom should be responsible for making sure that its employees and company policies comply with the Rules, including, but certainly not limited to, Rule 1.8(h)(1). Rule 1.8(h)(1) states, “A lawyer shall not: make an agreement limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.” Despite the company stating in its disclaimer that LegalZoom “is not responsible for any loss, injury, claim, liability, or damage related to [the users] use of this site,” it does not require, or even advise users to obtain independent representation before agreeing to the terms in the disclaimer as is required in Rule 1.8(h)(1). This violation of Rule 1.8(h) should not be taken lightly because, as stated above, the rules are in place to protect clients. Therefore, LegalZoom, with its law-related services, should not be exempt from the requirements of the Rules.
D. What Constitutes the Practice of Law?
Assuming that LegalZoom has established an attorney-client relationship with its website users, and considering LegalZoom has been named in class action lawsuits initiated by private attorneys who contend that the website provides services amounting to the unauthorized practice of law, it would be prudent to discuss where the boundaries of the practice of law lie to determine whether LegalZoom should be allowed to continue offering its services. Legally, only licensed professionals can practice law in the United States, and what constitutes the unauthorized practice of law is a matter of state law. Model Rule 5.5 incorporates the definitions provided by the various states and in paragraph (b) notes that “a lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law” or otherwise represent that the lawyer is admitted to practice law. Furthermore, the Model Code of Professional Responsibility, Ethical Considerations 3-5 states that the
essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment,
Regardless of the aforementioned policy considerations, publishers have a First Amendment right to create and sell do-it-yourself legal kits, but they can only do so if they are not engaging in the unauthorized practice of law, which is accomplished by refraining from personal contact with customers regarding the use of the kits. However LegalZoom, with its practice of reviewing documents for spelling, grammar, and consistency, arguably creates sufficient personal contact to prevent it from relying upon a First Amendment shield for publishers. LegalZoom’s services are unlike self-help books, do-it-yourself kits, and self-help legal software, because unlike the one-time purchase of such products, LegalZoom reviews and edits its users’ documents and more aptly engages in an interactive transaction with its customers. When there is just a one-time purchase of a do-it-yourself legal kit, it is not hard to imagine that the buyer has accepted responsibility for the consequences of the personal use of that kit. But when a do-it-yourself kit allows the user interaction with the selling company beyond the one-time purchase of the product, it is reasonable for the user to place greater responsibility for the final outcome of the product on the provider of the kit.
Operating under the assumption that LegalZoom does not violate prohibitions of the unauthorized practice of law, since as of yet there is no definitive authoritative position on the matter, there are consequent Model Rules, including Rules 1.1, 1.4, and 5.3, by which LegalZoom and all those legally practicing law must abide. Model Rule 1.1 establishes the duty of competency that a lawyer must provide to represented clients, including competent legal knowledge, skill, thoroughness, and preparation reasonably necessary for the requisite representation. A lawyer and client may agree to limit the scope of representation for which the lawyer is responsible, but the duty to provide competent representation may not be limited. The case In re Sledge demonstrates this rule well. Sledge, a high-volume solo practitioner, ran his office by largely leaving his cases in the hands of his clerks and other nonlawyers, who were left to put the lawyer’s name on pleadings, discovery responses, and correspondences using a rubber stamp. Sometimes Sledge was not present in the office for months as he attended religious retreats and wrote a novel, leaving his staff of nonlawyers to sign-up clients, write letters and pleadings, and negotiate settlements. The Louisiana Supreme Court held that disbarment was the appropriate sanction for Sledge for the neglect of his law practice and failure to supervise his nonlawyer assistants. Even though LegalZoom’s main disclaimer states that at no time does the company review users’ answers for legal sufficiency, draw legal conclusions, or provide legal advice or apply the law to particular user situations, the site does proclaim to users that they will get a “personalized legal document” with specific language for their state and “peace of mind” knowing their family is protected, implying that a user can safely rely on the legal document created for them by LegalZoom. It is hard to imagine that a user would get a legal document sufficient to protect their families if the document they received was not checked for legal sufficiency, and without someone to be liable, or accountable, for potential insufficiency down the road.
Similarly, Model Rule 1.4 states that a lawyer shall keep the client reasonably informed about the status of their legal matter, and Rule 1.3 requires a lawyer to act with reasonable diligence and promptness when representing a client. LegalZoom’s disclaimer makes clear that the law changes frequently, and that while efforts are made to keep the forms on the website up-to-date, they are not guaranteed to be current, or even accurate, in every jurisdiction. It is hard to reconcile this part of the disclaimer with the requirements of the Rules on this count, because as Rule 1.3, Comment 4 makes clear, unless the attorney-client relationship is terminated, a lawyer should carry through to conclusion all matters undertaken for a client. When a client retains an attorney to draw up a will, the attorney-client relationship is not terminated upon the lawyer’s completion and delivery of the will. The attorney has the responsibility to keep the client up-to-date on any changes in the law that might affect that client’s will and is liable for malpractice to beneficiaries should the will be drafted in a way that the client did not request.
With respect to a nonlawyer employed or retained by or associated with a lawyer . . . (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.
There is at least one instance per document where LegalZoom retains nonlawyer assistants to aide in the completion of the documents prior to releasing them to the purchaser. The “peace-of-mind review” is included in all LegalZoom wills, trusts, and power of attorney documents. The peace-of-mind review is described as follows:
Unlike simple do-it-yourself forms, LegalZoom services include a personal review of your work after you create your document through the LegalZip® system. Along with hundreds of automated checks, our document scriveners review the answers you provide for the following:
Complete information. We’ll contact you by phone and email regarding any missing information.
Spelling, grammar and punctuation. We do not rely solely on software spell checkers.
Correct capitalization and lowercasing where required.
Proper pagination and blank space elimination.
Complete words. We spell out abbreviations or symbols in English.
Correct residency information. Indicating the proper state is critical to ensure the document conforms to your state’s requirements.
Full names. We verify that full names are given (first and last) and that all names appear consistently throughout the document.
The document scriveners retained by LegalZoom who provide the useful and beneficial checks listed above should be subject to the Model Rules since, should they do their job incorrectly, they would violate the Model Rule requiring competency, thus seemingly exposing the lawyer who hired the document scrivener and authorized their work to liability for the mistake.
III. If It Ain’t Broke, You Still Might Want to Fix It
One option is to make the “Legal Advantage Plus” package a required item of purchase for all legal products sold through LegalZoom. The package gives the user the added features of attorney support, annual legal checkup with an attorney, unlimited revisions to the trust through LegalZoom, and secure storage and delivery of the trust. These added measures of review would likely have the effect of increasing the accuracy of the document created for the user.
A second option is for all states to enter into Assurance of Discontinuance agreements with LegalZoom, much like the one the state of Washington has entered into with the company. Provisions stating that LegalZoom cannot misrepresent the benefits or disadvantages of any estate-planning document as compared to any estate distribution document in the state, or fail to offer estate-planning forms that conform to the state’s law, would help assure that users of LegalZoom receive a product that better protects and satisfies the user’s needs. Furthermore, the provision should state that LegalZoom cannot fail to have a state licensed attorney review all self-help estate-planning forms offered to the state’s consumers, or fail to clearly and conspicuously disclose that communications between the company and consumers are not protected by the attorney-client privilege, which would further assure protection and satisfaction of the user’s needs.
A third option is the creation and adoption of a new Model Rule that makes it unethical for a provider of legal forms, who has an interactive relationship with the user of those forms, to disclaim complete liability from harm that may come from using those forms. By disallowing the disclaimers, users would have no doubt of their right to sue the provider for malpractice should a form end up being harmful to, or misrepresent, the user’s needs.
No one is likely to argue that preparing a will is an unwise decision, and, in fact, having a will is highly recommended. LegalZoom was created with noble intentions: it sought to allow people to create essential legal documents without encountering inconvenience or high fees. But disclaiming all liability to users of legal services, whether online or not–especially without the users conferring with a separate attorney–skirts a line of ethical responsibility that should not be allowed in light of the underlying policy of protecting the public from potentially harmful legal practices.