shlep: the Self-Help Law ExPress

  In July 2004, South Carolina insurance agent Ernest B. Chavis made a social visit to his former neighbor Annie Belle Weiss, who was then 91-years old.  Because she trusted him to be “objective” (having also had business dealings with him), Ms. Weiss asked “Can you help me make a will?”  Chavis agreed to help her with a simple will and “she directed [Chavis] as to how she wanted her property divided.”   His good deed resulted in a lawuit by her disgruntled heirs and, this week, in a finding that Chavis had engaged in the unauthorized practice of law [“UPL”].  See NYTimes/CNET, “Police blotter: Heirs sue over will-making software,” by Declan McCullagh, for News.com, Jan. 24, 2007; via Howard Bashman and Orijit Ghoshal)

What behavior, which was done without pay, won Chavis this condemnation?  According to the unanimous decision in Chavis v. Franklin (Supreme Court of South Carolina, Opinion No. 26251, January 22, 2007), he “used a ‘Quicken lawyer disk’ to generate a generic will on his home computer and he filled in the blanks.  He brought the will to Ms. Weiss on July 31 when he went to visit her in the hospital and she signed it.”  He also drafted a power of attorney for her (which the Court also deemed to be UPL). “The will names respondent as personal representative of Ms. Weiss’s estate but he is not a beneficiary.”    
 Quicken’s WillMaker Plus 2007    

Here’s the Court’s reasoning in declaring Chavis’ conduct to be the Unauthorized Practice of Law [emphases added]:

• “The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. [cite omitted]  Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence  . . . (“The amateur at law is as dangerous to the community as an amateur surgeon . . . .”).”
•   “The novel question here is whether respondent’s actions in filling in the blanks in a computer-generated generic will constitute the practice of law.  Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital.  Although these facts are not in themselves conclusive, the omission of facts indicating Ms. Weiss’s involvement is significant.  There is no evidence Ms. Weiss reviewed the will once it was typed.  The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.” 
• “We construe the role of ‘scrivener’ in this context to mean someone who does nothing more than record verbatim what the decedent says.  We conclude respondent’s actions in drafting Ms. Weiss’s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.

The Court also dropped a footnote [#5] emphasizing “The fact that respondent received no compensation is irrelevant.”  It went on to favorably cite a Connecticut decision that noted “a lack of compensation in fact makes the situation worse” — because “the public, through natural cupidity, are the more readily attracted to something which appears to be a ‘giveaway’ project or a chance to obtain ‘something for nothing. ”  Grievance Committee of the Bar of Fairfield County v. Dacey, 222 A.2d 339, 351 (Conn. 1966).  How’s that for respecting consumers?

 Of course, it’s ludicrous to say that a nonlawyer volunteer who uses a proven product like Quicken (or a document preparation tool life LegalZoom), to help a friend with a simple will, is “as dangerous to the community as an amateur surgeon.”   Moreover, it is simply bad policy.  Rather than blindly apply old precedent to a modern context, this case would have been an excellent opportunity for the Court to bring the definition of the practice of law into the 21st Century.

As Villanova law professor Catherine J. Lanctot wrote in “SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW,” 30 Hofstra Law Review 811 (2002, 44 pp, pdf), those who wish to apply UPL enforcement against such software products or document preparers “must not lose sight of the broader implications.”  Not only are constitutional challenges likely, but :

“[W]e must consider the ramifications of such enforcement. The public reaction would likely be negative. Enforcing unauthorized practice of law statutes against online document preparation services would be neither painless nor popular. The lay public, which already detests lawyers, generally perceives unauthorized practice of law enforcement as yet another way for the legal profession to line its collective pockets at the expense of consumers. . . .

“In addition, it is at least possible that these websites are managing to provide some consumers with a necessary service—basic legal documents at an affordable price. At a time when the bar seems to have abdicated its responsibility to provide routine, noncomplex legal services to the poor and middle class, it could well be counterproductive to try to shut down one vehicle for serving those unmet needs.”

The Chavis opinion basically denies the benefits of digital technology to any consumer who needs assistance using the software or website.  (Note: the Court goes through the motions of looking at other factors, but then concludes that Chavis engaged in UPL because he played more than the role of a mere scrivener.)  In fact, Chavis would appear to apply equally to printed self-help books or forms.  So, forget about helping your old auntie or parent, the grumpy old man nextdoor, or your non-techie spouse or sibling — and don’t even think about volunteering down at the Senior Center.   It’s an outcome that could easily lead the public to conclude, as Prof. Lanctot says, that UPL is “yet another way for the legal profession to line its collective pockets at the expense of consumers”

  For more background on the long battle between UPL and self-help materials, and on efforts to define the practice of law in a consumer-friendly way, see:

• “Nolo v. Texas — Self-Help Law and First Amendment Rights Protected” (Oct. 1, 1999). This press release contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccesfully a decade ago to ban Nolo’s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. [See Comment 2, below, for more details about Nolo v. Texas, as well as the battle over the ground-breaking bestseller How to Avoid Probate!, by Norman Dacey.]
• HALT’s UPL Project (where the legal reform group explains why the “unauthorized practice of law” should be limited to saying you are a lawyer when you are not.)
• The approach of the Federal Trade Commission and Department of Justice to defining the practic of law — Remarks to the ABA (2002)
• The postings and materials that are linked to f/k/a’s Unauthorized Practice page.