THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW. Dunkin Donuts a purveyor of delicious coffees and tasty treats says, America runs on

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1 THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW I. Introduction Dunkin Donuts a purveyor of delicious coffees and tasty treats says, America runs on Dunkin! With the growing American trend of instant access to most services worldwide via technology (i.e. iphones, ipads, laptops, ipods, Gameboy, Playstation, etc), it can be said, America runs on the internet. The internet has become a central medium for commercial activity allowing consumers to gather information, compare businesses or providers, and purchase a desired product. With instant access consumers may streamline the purchasing process by the click of a button without even leaving the home. Potential clients can submit questions over the internet; input information for determination of the relevant law; and consumers can even receive legal documents in response to their inquiries. Instant access is not only instant, it is also cheap, if not free. Failing markets, high unemployment, uncertain economies, slim consumer budgets and the draw of the internet make the search for estate planning most appealing. Internet companies such as LegalZoom marketed by a celebrity lawyer have taken full advantage of using these emerging technological advances. LegalZoom allows consumers (by answering a series of questions) to create legal documents without the direct involvement of an attorney. Consumers can obtain wills, trusts, powers of attorney, and living wills (advertising wills for only $99). Business owners can also receive incorporation documents for below market prices. These do-it-yourself services are advertised as being less expensive than an attorney, easy to access, with assurances such as putting the law on your side thus attracting consumers. This article seeks to address the internet and the unauthorized practice of law and law offices which also utilize the internet to provide services.

2 Two questions are presented for discussion in this article. First, under N.C.G.S. 84-4, does an internet company engage in the unauthorized practice of law when legal documents effecting substantial legal rights are provided to a customer. Second, under the competent representation rule of the North Carolina Rules of Professional Conduct, does an attorney provide competent representation when he or she provides legal documents without physically meeting with the client (i.e. via the internet). The balancing act played in this discussion revolves around the benefits of internet access: simple, initially cheap (may be lawsuits later), plan-on-your-own-time documents versus affecting lifelong wishes concerning a person s most important assets. II. Engaging in the Unauthorized Practice of Law A. Rules By the click of a button, a consumer can contact an online document provider and without a meeting or discussion with an attorney, spin off a will or other legal documents. Typically, such process involves the consumer answering a series of estate planning questions (i.e. concerning decision makers, Executor or Power of Attorney, or distribution). Under the North Carolina General Statutes relating to the practice of law, does an individual or company engage in the unauthorized practice of law when legal documents effecting substantial legal rights (i.e. Wills, Power of Attorneys Deeds, etc.) are provided to a customer through the internet? In North Carolina, it is unlawful for a person to practice law without a license. N.C.G.S It is also unlawful for a corporation to practice law. N.C.G.S For both an individual and a corporation, the practice of law includes preparing legal documents such as wills or other testamentary documents. N.C.G.S and N.C.G.S A person unlawfully practices law even if that person does not provide advice, explanation, opinion, or

3 recommendation. See Id. B. Case Law The limited case law in this area indicates that the courts of North Carolina have held that corporations or unlicensed individuals who prepare legal documents which affect substantial legal rights violate N.C.G.S For example, in State v. Pledger, 127 S.E.2d 337 (1962), the defendant Floyd Richard Pledger prepared deeds of trust without being a licensed attorney. The court found that deeds of trust were legal documents, and the practice of law embraces the preparation of legal documents and contracts by which legal rights are secured. The court opined that when considering the unauthorized practice of law, [t]he statute was not enacted for the purpose of conferring upon the legal profession an absolute monopoly in the preparation of legal documents; its purpose is for the better security of the people against incompetency and dishonesty in an area of activity affecting general welfare. Id. In State of North Carolina v. Lambert, 553 S.E. 2d 71 (N.C. App.) (2001), the Court of Appeals upheld the jury s finding that the defendant engaged in the unauthorized practice of law. In Lambert, the defendant, Anthony C. Lambert, met with Rosa Harvey to discuss her divorce. The defendant told Ms. Harvey that he was a licensed attorney and agreed to draft her divorce documents for a fee of fifty dollars. On the following day the defendant delivered the divorce documents as promised. During the divorce proceedings, the district court refused to grant a divorce concluding that the documents drafted by the defendant were insufficient and incorrect. The defendant was subsequently arrested, and on March 4, 1998, he was convicted of engaging in the unauthorized practice of law. The defendant appealed the conviction stating that there was insufficient evidence to support the conviction for the unauthorized practice of law, but the Court of Appeals found no error in the defendant s trial, except for the trial court s sentencing. Id. The

4 defendant appealed the finding from the resentencing hearing which resulted in the 2001 opinion by the Appeals Court cited above. (The Court of Appeals showed a diminished concern for violating the unauthorized practice of law when it stated that the sentence of thirty-six months probation was too high but within the legal limits.) In State v. Williams, 650 S.E.2d 607 (2007), the Court of Appeals held that the defendant, Theodore Williams, did not engage in the practice of law. While in prison, Williams befriended an inmate who was charged with rape. Williams then wrote a letter to the victim explaining the court process, possible sentences for the inmate, and possible sentences for her if she perjured herself. He also enclosed a hand-written affidavit for her to sign. The letter also contained advice for her to speak with the inmate s attorney or contact another attorney. The Court of Appeals overturned the lower court s ruling that Williams had practiced law because Williams did not hold himself out as an attorney; his advice was general in that she should appear when required; and the affidavit was a blank form found in the jail s library. A longstanding case involving the practice of law by corporations is Seawell v. Carolina Motor Club, Inc., 184 S.E. 540 (N.C. 1936). In that case, the Motor Club held out to the public through signs and advertising that it was competent to prepare legal documents. Part of the required dues to the Motor Club were used to pay for advise, counseling, and furnishing legal services on behalf of it members. The Motor Club also participated in actions to collect damages and defend persons charged with criminal offenses. Id at 541. The court definitively stated that corporations are not competent to practice law, that it is a personal right of the individual, obtained by diligent study and good conduct, cannot be delegated or assigned, and dies with him. Id. at 544.

5 At the time of writing this article, while litigation has been pursued against such companies as LegalZoom, we have no known decisive case on point concerning the unauthorized law practice via the internet. However, a review of the cases above in contrast to do-it-yourself online provider services by LegalZoom would indicate the following: 1) under the Williams line of cases, the mere provision of legal forms which can be obtained in public forums is not the practice of law; 2) under Lambert and Seawell, a non-licensed person holding oneself out as able to prepare legal documents constitutes the unauthorized practice of law. It would appear that this would include a non-licensed individual filling out the blank form legal document (whether online or by software or otherwise) for another person as being the unauthorized practice of law; 3) through Seawell, the court said a lawyer cannot delegate or assign the right to practice law to a corporation so it can prepare legal documents for the general public; and 4) none of these cases indicated a concern for companies providing consumers do-ityourself kits as the unauthorized practice of law. The NC State Bar has apparently taken the position that do-it-yourself kits via online or through software do not constitute the practice of law, unless legal advice is also given. C. Enforcing the Law A further problem arises with the limited enforcement of the law against offenders of According to the NC State Bar, out of several hundred complaints filed each year for the unauthorized practice of law, very few complaints are addressed by law enforcement. Section 84-4 is a misdemeanor offense. District Attorneys hard pressed with felony cases, armed robbery, and murder simply have no time to police such complaints. The facts in Frazier v. Murray, et. al., 519 S.E.2d 525 (1999) illustrate the potential difficulty in enforcing N.C.G.S In Frazier, the defendant, Reginald L. Frazier, was disbarred in 1989, but continued to

6 practice law without being reinstated. The Disciplinary Hearing Committee (DHC) attempted to have him prosecuted, but the Craven County District Attorney refused. The DHC was also denied by Superior Court Judge D. Marsh McClelland stating that, in his capacity, he had no authority to prosecute. In 1994, the State Bar filed a show cause motion with the DHC in response to reports that Frazier was continuing to practice law. The DHC issued an order for Frazier to appear before the Commission. Frazier did not personally appear but was represented by his attorney, Fred Williams. Frazier was found guilty of 16 counts of criminal contempt (but not the unauthorized practice of law) and sentenced to 480 days in jail and a fine of $3,200. After spending nearly eleven months in jail, Frazier was released on Constitutional grounds. The Eastern District of North Carolina held that he should be released unless he is given an opportunity to appeal his sentence. Enforcement of the statute against non-licensed parties appears bleak. III. Competent Representation A. Rules Clearly, in order for will preparation to take place, the draftsman must be a licensed attorney to satisfy the authorized practice of law requirements. Under the competent representation rule of the North Carolina Rules of Professional Conduct, does an attorney provide competent representation when he provides legal documents without physically meeting with the client (i.e. by using internet based technology)? An attorney subject to the North Carolina Rules of Professional Conduct is required to provide thoroughness and preparation reasonably necessary for the representation. Rule 1.1. An attorney must inquire into and analyze the specific factual situation in order to provide the requisite thoroughness required by Rule 1.1. Rule 1.1 Comment [5]. The attorney must also use methods and procedures that meet the

7 standards of competent practitioners including preparing documents such as a will or trust that speaks to the intent of the Testator through consulting with the Testator and through the informed consent of the Testator Formal Ethic Opinion 11. B. Discussion According to the Rules of Professional Conduct, the specific factual situation will determine what level of thoroughness and preparation is required. As the laws encompassing and effecting estate planning continuously change, the practice area of estate planning has also become more complex. Client capacity issues and preventing the financial abuse and fraud against the elderly have increased due to the growing number of the elderly client population, making representation far more difficult. As a result, the thoroughness and preparation required by the attorney for each client has increased. The Rules of Professional Conduct were written to provide a base line level of professionalism for the bar, but proper practice many times requires going beyond those requirements so that the attorney can provide service which zealously represents the client. The rules do not require particular actions of the estate planning attorney other than the generalities identified above. Consequently, a few questions seem important to ponder: Can an Attorney competently represent a client and prepare a will without a physical meeting with the client? Can the Lawyer be satisfied that the necessary requisites of testamentary capacity exist? Can the attorney be satisfied that the client s intent is documented when unable to ask probing questions, see the client s reaction and response leading to further direct questions? Can the lawyer be satisfied the legal documents prepared are in the client s best interests? C. Problems for Internet Based Practice The modern demand for online legal help has now reached the Bar Association level. The

8 virtual law office is described as a means for lawyers to keep competitive. Under the status of the e-lawyering Expert a recent article posted on the American Bar Association website presses the advantages of pursuing an online legal practice and the modern approach to the law practice. Unfortunately, this article does not address (other than stating ethical rules should be followed) how the virtual law office can comply with Professional Rules of Conduct when no physical meeting with the online client takes place. For purposes of representation, the estate planning attorney should use certain reasonably reliable methods in practice to accomplish a client meeting; he or she should strive to represent the client in a manner which satisfies the lawyer that he has diligently served the client but also provided such representation that meets the legal needs of the client. Meeting with the client face to face will affirm that the lawyer has reasonably obtained client intent and consent (see 2006 Formal Ethics Opinion 11). However, many mediums are now available for similar face to face communication including Skype and other real-time video based conferencing mediums which could satisfy that client intent and consent required was reasonably obtained. Pursuant to a recent Article in the American Bar Association s Real Property Trust and Estate Law titled Electronic Wills: Drawing a Line in the Sand Against their Validity (Vol. 47 No. 1 Spring 2012, page 197) the Author, Scott S. Boddery, notes that the increasing attacks on the internet databases or hacking into a Testator s estate plan database online has diminished the viability or trustworthiness of Wills created and held in an electronic format. Apparently, criminal techniques used against sophisticated database systems, including the Department of Defense, have been so successful that the potential for keeping an estate plan online secure from

9 risk of tampering is uncertain. 1 In contrast to the uncertainty and risk involved with creating an estate plan via online, the attorney s practice that follows a process of formally executing the Will in the presence of the lawyer and his staff carries great weight that the Testator s wishes and his final disposition of his estate are being accomplished. The formal process of executing the Will in the attorney s presence greatly diminishes the potential for undue influence, fraud, or mistake. Whereas, the e-lawyering Expert who utilizes the online legal practice in modern approach without a face to face meeting with the client only increases the risk potential for a Will contest. More basic than the desire to exceed the client s expectations, the estate planning attorney must provide services which are in the best interests of the client. Remember the court in Pledger stated that discouraging the unauthorized practice of law promoted better security of the people against incompetency and dishonesty... How can the attorney be sure of who he or she represents or that the identity of the client is made known (i.e. a son pretending to be his father signing a will as Dad)? How can the attorney via online representation be sure his client is not the target of fraud? Far less nefarious than complete strangers hacking into someone s computer and stealing information is the family member who is taking advantage of an elderly person. In contrast, a client who comes to an attorney s office can be evaluated by the attorney for testamentary capacity, testamentary intent, and allow the attorney to gauge the level of 1 See Electronic Wills: pg A 16 year old boy hacked NASA and the Department of Defense; a Russian National illegal transferred $10.7 million from Citibank data systems; a 15 year old Canadian boy hacked Yahoo, Amazon, Inc., Dell, Ebay, and CNN; and graduate students of University of Michigan hacked a test run of a recently proposed Washington, DC online absentee voting system (following a national invitation to test the system s weakness) which left the system restructured to play the University s fight song, the Victors, each time a ballot was cast.

10 pressure, if any, being applied by a family member. This author does not believe that an attorney can be satisfied via reliance solely on internet produced questions and answers (at this time) without more assurance that the obligation of having met client testamentary intent and ensuring testamentary capacity at the time of execution exists. The attorney does have a right, without evidence indicating differently, to believe the client. However, the attorney s best practice would be to confirm via face to face meeting with the client that the above legal requirements are met in preparation of a client s Will rather than selling out to the growing popular trend of documents on demand. In sum, the rules are written to protect clients from others (i.e. fraud, dishonesty, mistake), but the rules do not appear to protect individuals from making mistakes themselves (i.e. do-it-yourself Will kits whether online or using software). The lawyer, however, is held to a higher standard than the individual in providing legal services to the consumer. The lawyer must take care to ensure that when preparing the Will or legal documents that the legal requirements are met and that the client s intent and best interest are accomplished in accordance with law.