The Florida Bar Proposes A Registration Scheme for Legal Self-Help Software Publishers
The Florida Bar is considering a new Chapter 23 to Register Online Service Providers. This proposal creates a framework voluntary registration of online service providers with the Florida Bar. The goal of the new rules is to provide greater access to legal services, the legal system, while at the same time providing public protection which according to the Florida Bar committee is lacking.
An "online service provider" is defined as an "internet-based business that provides or offers to provide legal services to members of the public including providing legal forms the consumer can complete without a lawyer's assistance.
A legal form is defined as (1) a current form approved by the Supreme Court of Florida, or (2) a form consistent with current Florida Law that has been reviewed and approved by a member of The Florida Bar eligible to practice law in Florida.
Registration by the Online Service Providers is voluntary, but only a registered provider would be able to use the designation "Registered with The Florida Bar" and include an approved logo on all advertisements and communications. The designation is designed to pressure Online Service Providers to comply with the registration scheme.
Some of the requirements of the proposal are common sense notifications to consumers such as a requirement that the consumer must be notified that the lawyer-client and work product privilege doesn’t apply; that use of a legal form is not a substitute for the advice of a lawyer; that the provider discloses how a consumer’s information will be used and shared.
Problems With This Proposal The proposal is deeply flawed, anti-competitive, will inhibit innovation in the delivery of legal services, and ultimately restrict access to the legal system.
Automated Legal Forms is “speech” protected from any regulation, including prior restraints, and protected by the First Amendment of the U. S. Constitution and Article 1, Section 4 of the Florida Constitution, Freedom of Speech and Press. 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.” argues that UPL statutes may violate the free speech rights of publishers of automated legal forms. Other commentators have made similar arguments.
The leading case in this field held that distributing the 1965 book How To Avoid Probate did not constitute the unauthorized practice of law. Other case law supports this proposition, and it is now clear that prohibition or regulation of self-help legal form books would be a First Amendment violation. Today anyone can purchase a package of legal forms with detailed instructions on a CD/ROM from companies like Staples, Office Depot, Amazon, and Nolo, Inc. Almost all of these products are also sold online. The forms that are sold are both “flat” forms such as forms in Adobe.PDF or MS Word, but many retail products also offer automated legal forms. Automated legal forms are interactive in the sense that information provided by the user into a questionnaire which in turn uses an intelligent software engine to create a document that is responsive to the user’s situation resulting in a personalized document often equivalent to what an attorney might generate using manual methods. The Internet has enabled the expanded distribution of these products from retail outlets at very low cost. This expanded distribution threatens the organized bar. This is the real reason for the proposed registration scheme- to restrain the the growth of innovative software applications that substitute for the work of an attorney.
Free Speech Issues Are these automated legal forms speech that cannot be regulated? There is a line of case law that supports the proposition that software is text, and therefore it self help legal software applications are publications. The Florida Bar characterizes legal software as “services” which is arguably incorrect.
One can’t just name a thing to be something that it is not, because that enables a party to do an act that it would be prohibited from doing if the thing were not renamed.
A software application is a work of authorship, comparable to the content delivered by a book. A software application, like a book, is written in advance of its use. Like a book a software application is self-contained.
The question of whether First Amendment rights extend to computer code has arisen in cases involving publication of decryption algorithms is well-established. 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.”.
The Florida Bar can’t simply label an activity to be a “service” when in fact it is a “product” or a publication. You can’t convert speech into a form of conduct, by just renaming what it is.
If I read a self-law book that instructs me about to create a legal form, why can’t I run a software program that helps me create a form that the book discusses? Is the distribution of software that helps people with their legal needs an activity that needs to be “authorized” or “registered”? Can government require the licensing or registration of the distribution of software publications to consumers?
Constraints on Innovation and Access to Justice.
The Florida Bar claims that this a voluntary registration requirement that will increase access to the legal system. The reality is that even a voluntary registration scheme will have a negative impact on the creation and distribution of self-help legal software products by software publishers.
1. Let’s assume that every state passes similar legislation. A legal software publisher has created a very specialized software program that creates a legal form that has a limited market., e.g. Qualified Relations Domestic Orders. The cost of requiring that an attorney in each state review the legal content may cost the publisher anywhere from $2,500.00 to $5,000.00 depending on the complexity of the content, if not more. Thus, the publisher is facing capital requirements of between $125,000 and $250,000. This prior restraint will inhibit the development of more specialized and innovative software products.
2. A registration fee is also a prior restraint, particularly when required by many states if this approach escalates to every state.
3. The Florida scheme empowers lawyers to review and approve online service providers. Should lawyers have a monopoly over the approval of legal software as well as over in-person legal services?
The Florida Bar Has a History of Suppressing Competition
The Florida Bar has a long history of suppressing competitors to the legal profession. [ See The Florida Bar v Brumbaugh, 355 So. 2d 1186 (Fla. 1978).]. It is a well-established fact that the legal profession only serves about 20% of the U.S. population, so efforts that restrain technology-powered and low-cost alternatives should be carefully evaluated before implementation.
Before creating new licensing and registration schemes that protect the legal profession’s monopoly on the delivery of legal services, I would have like to have seen Staff and Florida Bar committee work that would address the following questions:
1. What is the documented extent of harm that is caused by this particular innovation in the delivery of legal service?
2. Is there a First Amendment prior restraint on the proposed regulation or registration scheme?
3. Is the proposed regulatory or registration scheme anti-competitive and a violation of the Sherman Act under the North Carolina State Board of Dental Examiners. 135 S. Ct. 1101 (2015). ?
The legal analysis and justification for this proposed registration scheme are inadequate. A more transparent approach would expand the discussion on the legal limits to regulation and registration, and there would be an expanded discussion of the costs and benefits of regulatory or licensing approaches of non-lawyer competitors to the legal profession, An expanded discussion would avoid the charge that the true motivation for Florida’s Bar action is to constrain competition and to protect the income of solo and small law firm lawyers.
I expect better “lawyering: from the Florida Bar.
 Available at: http://digitalcommons.law.villanova.edu/wps/art168
 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).
 Junger v. Daley 209 F.3d 481, 484-485 (6th Cir. 2000)
First Amendment Protects Software