California Task Force Proposes to Regulate Legal Software Publishers
The State Bar of California’s Task Force on Access Through Innovation of Legal Services is now proposing to regulate legal software publishers. The specific proposed recommendations that would affect legal software publishers include:
Recommendation 2.3: State-certified/registered/approved entities using technology-driven legal services delivery systems should not be limited or restrained by any concept or definition of “artificial intelligence.” Instead, regulation should be limited to technologies that perform the analytical functions of an attorney.
Recommendation 2.4: The Regulator of State-certified/registered/approved entities using technology-driven legal services delivery systems must establish adequate ethical standards that regulate both the provider and the technology itself.
Recommendation 2.5: Client communications with technology-driven legal services delivery systems that engage in authorized practice of law activities should receive equivalent protections afforded by the attorney-client privilege and a lawyer’s ethical duty of confidentiality.
These recommendation propose that purely-software powered legal solutions will not be considered the practice of law unless certified and approved by some bar established regulatory body.
There are major problems with these recommendations: (See also: "California Bar Task Force Sketches Out Radical Future, Also Tech Regulation" for a similar point of view.).
1. The proposed recommendations conflict with a well-established body of law that software applications are a form of speech and entitled to First Amendment Protections.
2. The reform proposal fails to make a distinction between software powered legal software products, such as www.nolo.com and www.smartlegalforms.com, and legal service delivery systems that involve human conduct, such as www.legalzoom.com. This is a failure of analysis as it does not distinguish purely software applications (products), from technology-assisted legal service delivery systems that involve human conduct.
3. The proposed reform would force a wide variety of automated legal forms and legal information publishers from www.nolo.com to www.staples.com to www.rocketlawyer.com to www.donotpay.com that offer only software-powered applications that do not involve human conduct to be certified under a regulatory scheme.
4. The impact of such a regulatory scheme would be a chill on innovation. Venture capital now pouring into legal software technology start-ups would disappear. The best way to kill software innovation in the delivery of legal services is to impose a regulatory scheme that involves lawyers reviewing and approving the legitimacy of software products. Not only would the cost be prohibitive, but the idea that a group of lawyers would have the expertise to evaluate innovative software products that serve consumers is an oxymoron.
5. The recommendation is anti-competitive as it grants more power to lawyer-related decision-making bodies to make decisions over products that would compete against the services of lawyers.
A State UPL statute that excludes legal software publishers from the definition of the unauthorized practice of law provided they are approved and certified would in my opinion by subject to challenge on Federal and State First Amendment grounds.
A working paper expanding on this challenge to UPL statutes by Professor Catherine Lanctot of Villanova Law School (written in 2011), entitled: “Does LegalZoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law.”[1] argues that UPL statutes may violate the free speech rights of publishers of automated legal forms. Other commentators have made similar arguments.[2]
Do people have a right to write, read, and run software that embodies ideas about how the law works? To what extent are people free to provide automated legal assistance? Is there a right to receive such assistance? To what extent can government enjoin or punish such provision or receipt? Is the distribution of software that helps people with their legal needs an activity that needs to be “authorized?” Is it good policy to forbid automated legal assistance? Should lawyers be given a monopoly over legal software, as well as over in-person legal services? In general, what are the appropriate boundaries? What principled lines can we draw in this area?
The question of whether First Amendment rights extend to computer code has arisen in cases involving publication of decryption algorithms. Seethis court ruling for example:
“[C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.”.[3]
Millions of people with pressing legal needs go without help. Courts are underfunded and overwhelmed. Regulating legal software publications is not only offensive to First Amendment values. but will be the death knell of an emerging industry. You can always count on the legal profession to squash competition in the name of consumer protection. Free expression, by definition, need not be “authorized.” The extension of the concept of "authorized practice of law" to situations where a lawyer/client relationship does not exist is a perversion of the concept of a trusted lawyer/client relationship.
The Federal courts could conclude that purely software legal applications that solve our citizen’s legal problems will be a protected speech and enjoy all of the protections of the First Amendment.
Adoption of these recommendations will result in excessive litigation and challenge from the participants in the legal software industry until the Federal courts settle this issue. In my opinion it would be prudent to exclude legal software products aimed at consumers from any consideration that it is the practice of law.
A better course of action would for California to adopt the Texas exception the unauthorized practice of law form software and other printed self-help products:
(a) In this chapter, the “practice of law” does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter[4]. (emphasis added).
Legal Software products that provide notice to the consumer that the use of the software product is not the equivalent of consulting with a lawyer makes more sense to me than a costly, oppressive, and unconstitutional regulatory scheme that will result in suppressing innovation and further restricting consumer access to the legal system.
The idea that a computer program is the equivalent of a lawyer-client relationship and needs to be regulated is plainly dumb. As the 2d Circuit Court ruled in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, “tasks that could otherwise be performed entirely by a machine” could not be said to fall under the “practice of law.”
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[1] Available at: http://digitalcommons.law.villanova.edu/wps/art168
[2] Marc Lauritsen, Are We Free to Code the Law?, 56 COMMUNICATIONS OF THE ACM 60, 62 (2013); Donald Patrick Eckler and Ashley S. Koda, Pretzel & Stouffer, Chartered, Chicago, Against the Wind: Practical and Ethical Implications of Artificial Intelligence in the Practice of Law, IDC Quarterly Volume 26, Number 4 (26.4.20) | Page 5 Illinois Association of Defense Trial Counsel | www.iadtc.org; Cynthia L. Fountaine, When is a Computer a Lawyer?: Interactive Le-gal Software, Unauthorized Practice of Law, and the First Amendment, 71 U. CIN. L. REV. 147, 151 (2002).
[3] Junger v. Daley 209 F.3d 481, 484-485 (6th Cir. 2000)
[4] Vernon's Texas Statutes and Codes Annotated Government Code, Title 2. Judicial Branch, Subtitle G.
Attorneys, Chapter 81. State Bar, Subchapter G. Unauthorized Practice of Law
