Q. When a company provides an online document automation application that assembles legal forms and documents automatically, does a lawyer commit the unauthorized practice of law when entering into a relationship with the company in order to make web-enabled document automation available to the lawyer’s clients as part of the lawyer’s legal services?
A. Under ABA Model Rule 5.5 and the corresponding rules of professional conduct in most states, a lawyer can commit the unauthorized practice of law in either of two ways – by providing legal services where the lawyer is not admitted or otherwise authorized to practice and by assisting a non-lawyer in conducting the practice of law.
First, a lawyer commits the unauthorized practice of law when he or she provides legal services in a jurisdiction where the lawyer is not admitted or does not otherwise have the authority to provide those services (such as through pro hac vice or special exceptions set out in the state rules of professional conduct). Under this rule, it would generally be inappropriate for a lawyer admitted in one jurisdiction to provide legal services for clients with matters in another jurisdiction (unless the lawyer had some type of authority to do so). Therefore a lawyer who provides online document preparation to clients must be certain that the matter involves a jurisdiction where the lawyer is admitted. In other words, it would not be appropriate for a lawyer admitted only in Illinois (and without any special admission status) to provide online document preparation to a client for a matter in Wisconsin. The same would be true for documents prepared offline as well as any other legal services that would be deemed the practice of law.
Second, a lawyer commits the unauthorized practice of law when the lawyer assists a non-lawyer, whether that is a person or a corporation, to undertake the practice of law. This leads to the question of whether online document automation that creates a legal form or document from data provided by the client is the practice of law. The definition of “the practice of law” varies from state-to-state but frequently includes the drafting of legal documents and the use of legal knowledge or skill. (For specific state definitions, see http://www.abanet.org/cpr/model-def/model_def_statutes.pdf).
However, the question here revolves around whether the lawyer is “assisting” the software vendor in practicing law when the document preparation is provided as a legal service of the law firm. This is analogous to services provided by paralegals and other outsourced services. In most states, for example, paralegals have no independent authority to provide legal services. If they independently provide document preparation or use their legal skills in serving clients, they may be deemed in violation of their state’s UPL laws, as are any lawyers who assist them in providing those services. However, if paralegals provide those same services under the direction of a lawyer and the lawyer assumes supervisory obligations, the paralegal is not practicing law and is not violating UPL laws, nor is the lawyer who provides the supervision “assisting” in the unauthorized practice of law.
ABA Formal Opinion 08-451 (Aug. 5, 2008) clarifies that a lawyer may outsource legal services, subject to several considerations. The opinion directly addresses independent contractors, such as temporary lawyers, but also mentions sources of tasks such as a photocopy shop, a document management company and a third-party vendor for the firm’s computer services. In its discussion of Model Rule 5.5 and the unauthorized practice of law, the Opinion states, “Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the lawyer remains responsible for the work being performed and that the individual is not held out as being a duly admitted lawyer.”
Therefore, even if a document automation application would be deemed the unauthorized practice of law (if its services were provided independently of a lawyer’s services), once those services or the documents produced by the software application are provided under the lawyer’s direction and supervision and within the scope of the lawyer’s services, the lawyer can no longer be assisting the document preparation in the practice of law and no longer has a risk of assisting in the unauthorized practice of law.