January 2017 • Volume 105 • Number 1 • Page 49
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Consumer Legal Forms and UPL
Are online-forms vendors engaged in the unauthorized practice of law? Yes, if they're giving legal advice.
The 2016 Report and Recommendations of the Illinois State Bar Association's Task Force on the Future of Legal Services, discussed in this month's cover story, looks at the evolving landscape of the law. But where does it leave the ethical aspect of the profession?
The report places a strong emphasis on technology and how it will shape the future of the profession. And lawyers have an ethical obligation to stay informed about technology. As Comment  to Illinois Rule of Professional Conduct 1.1 states, "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." At the very least, attorneys need to be aware of the risks associated with the technology they choose to use.
DIY and UPL
Technology also poses a threat to attorneys in the form of do-it-yourself document assembly for consumers. This technology has the potential to be "disruptive" as described in the task force report - that is, technology that causes a sweeping change or overhaul of a specific sector or industry.
Its appeal is obvious. The DIY aspect offered by online services makes the consumer feel in control and the relatively low prices only make the demand grow. Millennials in particular use technology in nearly all aspects of their lives. It should be no surprise that DIY technology would appear in the legal sector as well.
But at what point does it cross the line from clerical service to practicing law?
Various Illinois cases have attempted to create boundaries around the practice of law. As early as 1931 courts concluded that the practice of law involved not only appearances in court, but also services rendered out of court and in advising a client as to a cause of action or defense, as well as the giving of advice or rendering services requiring the use of legal skill or knowledge. People ex rel ISBA v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901 (Ill. 1931).
Illinois has refined that definition in other cases by describing the practice of law as the giving of legal advice to another in any matter involving the application of law or legal principles to specific circumstances, facts, status, rights, obligations, purposes, or desires when such advice is intended to be or may be reasonably relied upon. In re Howard, 18 Ill.2d 423, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999); People ex rel Chicago Bar Association v. Barasch, 406 Ill. 253, 94 N.E.2d 148 (1950).
Only lawyers may give legal advice. Comment 2 to ABA Model Rule 5.5 states: "Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons."
Some online legal providers give legal advice. While some might simply provide blank forms, many others collect specific information from consumers and either offer advice or provide specific information and paperwork.
The best path
Even though DIY forms providers might be engaging in the unauthorized practice of law, and though they might give incorrect information or forms - not to mention the issues they raise related to confidentiality, conflict, and privileges - consumers will continue to be drawn to them. Do attorneys attempt to regulate (and possibly shut down) this technology or embrace it?
For the ISBA, the best path is to do just as the report suggests: establish an online presence, preserve and champion lawyer value, support technological competence and efficiency, educate the public, remain involved in the regulatory process, support judicial efficiency, and adapt.
BaIley Cunningham is assistant counsel for the ISBA.