Richard Granat has a very interesting and reflective post on the e-lawyering blog on the question of when a website is practicing law.  (No surprise, Richard is a pioneer who is always thinking ahead.)

As the title “Is LegalZoom Just a Self-Help Legal Software Company?” suggests, the post focuses on LegalZoom and its defense against unauthorized practice of law claims brought against it in the US District Court in Missouri.

Richard’s position is summarized here:

It is not possible to know how LegalZoom’s document technology actually works without further evidence. However, one can state with certainty that it doesn’t work like a true Web-enabled document automation technology which generates a document instantly from data entered into an on-line questionnaire that is presented through the Web browser.

Vendors of true Web-enabled document automation solutions, such as HotDocs, Exari, DealBuilder, WhichDraft and Rapidocs (our company) have document automation technologies that generate a document instantly after the user clicks on the submit button. Because LegalZoom’s technology seems to require a separate step that is executed off-line, it does not in my opinion, fit into the category of a Web-enabled document automation technology. . . .

Instead, in the LegalZoom  business model, as described by LegalZoom, a data file is created, reviewed by a legal technician, and then imported into their – document assembly application utilizing some form of import mechanism. It is not clear whether the document is fully-assembled until this second step takes place, and it’s a distinction that makes a difference.

If LegalZoom were just a legal software company, it is hard to understand why it needs over 400 employees to provide services to its customers, other than the fact that these employees are conducting professional reviews and providing real service support. For these services, LegalZoom receives a substantially higher price than if they were just selling a self-help legal form. See for example on the LegalZoom Web site, the 30-point review of wills conducted by LegalZoom’s “professional legal document assistants.”

These more labor intensive, personal services makes LegalZoom a “service business” and not just a “legal software publisher” entitled to the First Amendment protections that are afforded to publishers.

As to the precise tasks performed by the service, Richard descibes the following discussion:

These more labor intensive, personal services makes LegalZoom a “service business” and not just a “legal software publisher” entitled to the First Amendment protections that are afforded to publishers.

Andrea Riccio, a Canadian lawyer who has commented about this subject, responds to some of the arguments that LegalZoom makes in its defense:

LegalZoom’s argument: “Typically, there is no interaction between the customer and the person reviewing the file.”

Riccio’s response:
“The mere fact that the employee is granted access to the customer’s response is an interaction between the employee and customer.”

LegalZoom’s argument: “If there is an inconsistency, it is NOT corrected by the employee – instead, it is brought to the attention of the customer.”

Riccio’s response:
“Whether it is the customer or the LegalZooM employee that physically changes the document is irrelevant. What is important is that it is the LegalZoom employee that has identified the inconsistency. That, in my opinion, goes beyond “self-help” and is an act of legal draftsmanship.”

LegalZoom’s argument: “no employee revises or corrects any portion of the customer’s self-created document.”

Riccio’s response:
“Identifying inconsistencies or errors in another person’s document is in my opinion an act of revision and correction. Who physically makes the changes is irrelevant.”

Richard concludes:

Whether or not LegalZoom provides a valuable service; whether or not consumers have been harmed by LegalZoom; and whether or not the company provides some form of legal advice are questions of fact for the Missouri jury, and beyond the scope of this post.

The question for the U.S. District Court in Missouri is whether, as a matter of Missouri law, LegalZoom’s document preparation service business constitutes the practice of law in Missouri, under the terms of the Missouri UPL statute.

I think it does. What do you think?

Richard also links to an article in CNN Fortune and Money.

My own initial personal view, subject to likely revision, is that services like the one described should be nationally regulated by a body like the FTC, rather than by state organizations that regulate the practice of law, and that for any “safe harbor” from federal regulation to apply, certain standards would need to be met.  In any event, I am skeptical that current structures of regulation are adequate to deal with these kinds of hybrids.