“Sure, I can pay $150 for a wrench, but it doesn’t make me a plumber.”
Setting aside all nuance, that’s usually the response I give when somebody asks me about document software, or services like LegalZoom®. Some folks are sheepish even to bring up the subject, perhaps surprised when I don’t react with utter disgust or disdain.
“Aren’t they cutting into your market?” they ask. Well, first of all, the market was never really mine to begin with. All markets belong to consumers, not producers. Demand drives supply, not the other way around. If LegalZoom® recognizes a market and pursues it, more power to them. As to the “cut” being taken by online document processors, that depends upon what market we’re talking about.
Attorneys offer legal analysis, advice, and advocacy. Often, in the exercise of these duties, we also draft documents. LegalZoom® is quick to point out, in both its advertising and on its website, that it is not a law firm:
Disclaimer: The information provided in this site is not legal advice, but general information on legal issues commonly encountered. LegalZoom is not a law firm and is not a substitute for an attorney or law firm. LegalZoom cannot provide legal advice and can only provide self-help services at your specific direction.
Source: http://www.legalzoom.com/ (last visited Sep. 10, 2010).
In other words, document companies cannot provide the most important skills that people use an attorney for: analysis, advice, and advocacy. They provide a product of sorts, but no means to use it. An attorney, by contrast, is primarily employed for these skills. The creation of a document is only a portion — usually a small portion — of what an attorney does.
Imagine if I said, “Why would I hire a carpenter, I can buy nails and a hammer at the hardware store?” Well, if you know me, you’d answer: “Because I saw the birdhouse you made in high school shop class, Andy, and it looks like a Salvador Dali painting!” And you would be correct. My carpentry skills are a bit . . . surreal. But when it comes to home improvement, at least I know my limitations. I might try a small repair, but I leave the important carpentry and plumbing jobs to an expert. If I don’t, I’m liable to end up with something like this:
Unfortunately, with legal documents, it’s not always easy to tell the birdhouses from the bigger, more important projects. Why? Because if a legal document is wrong, it might not be discovered for thirty years (i.e., a Last Will and Testament). If it is discovered, it may be too late. It’s hard to eyeball the size of the job and get it right the first time. As a result, carpenters and contractors spend a reliable percentage of their careers fixing the work of the do-it-yourself crowd. Lawyers, too. What’s the fastest way for me to tell that someone probably didn’t benefit from a do-it-yourself document? He doesn’t understand it.
It’s skill and experience that tells a carpenter what projects will stand the test of time; an auto mechanic what repairs need factory parts and where after-market parts will do; and a plumber what wrench will fix my new sink. Tools don’t mean much unless you know how to use them. Sure, I can pay $150 for a wrench, but it doesn’t make me a plumber.
That’s not to say that auto-document companies don’t occasionally cross the line. States do enforce laws against companies that pretend not to offer legal advice (but really do) by charging them with the Unauthorized Practice of Law. Last Fall a Court in Ohio fined a company $6.4 Million for engaging in UPL. Earlier this year, in State ex rel. Indiana State Bar Ass’n v. United Financial Systems Corp., 926 N.E.2d 8 (Ind. 2010), the Indiana Supreme Court found that a company engaged in the unauthorized practice of law and ordered it to refund the fees that customers had paid for document creation, ordered it to provide a copy of the court’s opinion to each customer affected, and for good measure, made the company pay the costs of its own prosecution.
I think there is room in the market for those who want only legal documents, not analysis, advice, or advocacy. Likewise, there is room for weekend project masochists to buy that wrench and do their best impression of the Roto-Rooter® man. Just not me.