September 3, 1999

Texas Committee Fights Spread of Electronic Legal Advice

By MATT RICHTEL

controversial group of Texas lawyers, deputized by the state to protect citizens against unauthorized legal advice, has lost its battle to ban the sale of the popular self-help legal software package Quicken Family Lawyer '99.

But the group may yet face a showdown with Nolo Press, a pioneer publisher of do-it-yourself legal advice that has branched out into software and the Internet. And whatever the outcome, the two sides of the debate -- along with outside legal observers -- say the conflict raises important questions about self-help law in the digital age.

The general controversy surrounds the proliferation of self-help Internet sites and software, which are intensifying the long-standing tension between the publishers of do-it-yourself legal materials and the traditional legal establishment.

Some lawyers say that the self-help materials oversimplify the law in a way that endangers consumers, amounting to a form of malpractice. But the publishers say the objectors are just self-interested, and that lawyers want the law to appear more complicated than it really is so they do not lose business to self-help publications.

In February, a federal judge in Texas rendered a decision that, at the time, seemed to be a major victory for critics of such publications. Judge Barefoot Sanders of Federal District Court in Dallas banned the sale of Quicken Family Lawyer '99 after concluding that the software went beyond merely providing information and "ventured into the unauthorized practice of law."

The software, published by the Parsons Technology unit of Broderbund and selling for $30, lets lay people draft legal documents like wills, living trusts, prenuptial agreements and documents authorizing power of attorney. The software customizes the documents by asking questions like whether a person is married or how many children they have. The program "goes beyond merely instructing someone how to fill in a blank form," Judge Sanders wrote.

But in June, in response to publicity surrounding the software ban, the State Legislature in Texas passed a bill that redefined "the practice of law." Under the legislation, publishing or distributing software, books, Internet sites and similar materials "that clearly and conspicuously state (they) are not a substitute for the advice of an attorney" are not considered to be an attempt to "practice" law. So if a software package includes the proper disclaimer, it cannot be banned.

Related Article Possible Legal Software Ban Raises Free Speech Issue (February 7, 1999)

Quicken Family Lawyer includes such a disclaimer, which notes in part: "Because we cannot decide which forms are best for your individual situation, you must use your own judgment and, to the extent you believe appropriate, the assistance of a lawyer." Last month, in light of the new Texas law, Judge Sanders tossed out the case, and Parsons is free to sell the software, now upgraded to Quicken Family Lawyer 2000.

"The Legislature made a mistake," said Mark A. Ticer, a Dallas lawyer who is chairman of the Dallas subcommittee of the Unauthorized Practice of Law Committee, a group of lawyers that polices the practice of law in Texas and that brought the suit against Parsons.

Ticer believes the software and many other self-help publications mislead consumers by oversimplifying the law. "Ultimately, the kinds of mistakes and problems you'll see won't manifest themselves for years down the line," he said. For example, he said, a will might end up being contested because the software user didn't fully understand the program.

But to critics, it is Ticer and the Unauthorized Practice of Law Committee who are on the wrong side of the issue -- and who themselves, figuratively speaking, could use some cross-examination.

The nine-member committee, an arm of the state Supreme Court, is responsible for reporting people and companies who practice law without license or authorization. Critics say the committee, which must include at least three non-lawyers, is a secretive body that operates as a veritable star chamber.

They note, for example, that for many years the committee was not required to disclose the names of its members or its meeting times and places, or to make public the nature of its investigations against a given individual or company. The only time an investigation might come to light is if the committee recommended to the state that it bring a civil action against a person or company.

"It is an inquisition type thing" when the committee requests an interview as part of an investigation, said Stephen R. Elias, associate publisher of Nolo.com, the Web site of Nolo Press. "They're protecting the attorney turf."

Nolo Press, based in Berkeley, Calif., started selling legal books in 1971 and now sells software like WillMaker and Living Trust Maker. The committee started investigating Nolo in 1998 for reasons it would not disclose, and Nolo decided to fight back. In 1998, it sued to force the committee to be subject to the same public disclosure laws as other public agencies. But that issue became moot when last April, the Supreme Court of Texas declared that along with other agencies in the judicial branch, the committee was subject to such laws.

Meanwhile, Nolo has sued to force the committee to drop its ongoing investigation and to force the State of Texas to declare its products legal. That lawsuit is pending, although the company said it may drop the suit if the committee agrees during its September meeting to set aside its investigation of Nolo.

Internet links of interest to Cyber Law Journal readers

Lawyers from Nolo said another reason they decided to go on the offensive was because the committee, in seeking to ban software or books, is effectively engaging in censorship. "We see somebody trying to stamp out a real heavy First Amendment right to publish," Elias said.

At the same time, Elias and other advocates of self-help legal publications concede that consumers need to be careful not to use do-it-yourself legal publications and kits when the issues become complex -- or when a legal dispute becomes heavily contested.

"Texas went a little bit overboard, but there is a legitimate issue," said Mark F. Radcliffe, a partner who specializes in Internet law cases at the firm of Gray Cary Ware & Freidenrich in Palo Alto, Calif. Radcliffe said consumers, for example, need to make sure that the information on a legal Web site or in software is up to date, and that the forms offered are still valid.

It is an issue that the publishers of self-help Web sites are also struggling with. Gerry H. Goldsholle, chief executive of the Advice Company, which publishes a legal site called Freeadvice.com, said consumers should not automatically trust a law-related Web site. Web surfers can watch for sites that have partnerships with well-known organizations like the Association of Trial Lawyers of America or Better Business Bureaus, he said.

William E. Hornsby, staff counsel for the legal services division of the American Bar Association, said the trade organization has no official position on self-help sites and software. He said the organization recognizes that they represent both a great opportunity as an affordable source of legal information, but also a possible liability when the information is wrong or misleading. "The technology dimension adds a level of concern, because of the ease of access," he said.

That said, other states do not seem to be following Texas' lead in trying to regulate sites or software, said Pete Kennedy, the lawyer for Nolo Press and a partner in the Austin, Texas, law firm of George & Donaldson.

And as for Nolo Press, the dispute between the Berkeley-based publisher and the Dallas subcommittee has taken on the overtones of a culture clash. Ticer, the lawyer for the subcommittee, said Nolo has blown the secrecy element way out of proportion. "I can't help it if some hold-over group from the 60s in San Francisco thinks we're the trial of the Chicago Eight," he said, referring to the left-wing organizers of protests at the 1968 Democratic National Convention.

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

---

Related Sites
These sites are not part of The New York Times on the Web, and The Times has no control over their content or availability.

• Nolo Press

• Nolo Press: Information on dispute with Texas

• Broderbund

• Freeadvice.com

---

Matt Richtel at mrichtel@nytimes.com welcomes your comments and suggestions.

---