By: Cliff Ennico
As anyone who has ever worked with legal forms knows, there is no such thing as a “boilerplate” document – every form document needs to be tailored to a specific situation. Traditionally, that “tailoring” has been done by lawyers.
You can certainly publish legal forms online and charge customers for downloading them. But when you start answering your customer’s questions, and offering them advice to help them fill out the forms, that’s where you might be engaged in the “unauthorized practice of law”, and that is illegal in virtually all states.
When is it okay to provide advice to the people who buy your online legal forms? There is one simple scenario. If you:
- are licensed to practice law in State X;
- are familiar with the types of documents you are selling online (a criminal lawyer may not be qualified to give advice on a real estate document); and
- your customers are all located in State X and are using these forms within State X;
you are not engaged in the “unauthorized practice of law”. What you are doing is no different that advising clients in a “brick and mortar” law office.
However, if you are planning to retire from the active practice of law, that could cause some problems. Since most states restrict retired attorneys from continuing to practice law, you may need to get a ruling from your state licensing authority allowing you to provide advice to your online customers. Or you may well decide not to retire at all so you can continue to provide lucrative advice to your online clients as an actively admitted lawyer. You may well make more money doing this than by running a traditional law practice.
But what if you are not a licensed lawyer? Or you are not admitted to practice law in the state where a customer lives? Can you give advice to a customer who needs help filling out your online forms? That’s where you are likely to get into trouble. If you are not a licensed attorney in the state where your customer is located, offering any advice to that customer on how to fill out legal forms is the “unauthorized practice of law,” and therefore illegal.
So is there a way for an online “legal forms” website to offer advice to its customers without engaging in the “unauthorized practice of law”?
The short answer is “yes, maybe,” but it will require a lot of work on your part.
First, you will have to create a “stable” of attorneys licensed in each of the 50 states – at least two attorneys in each state, and don’t forget U.S. territories and possessions such as Guam and Puerto Rico – who for a small fee agree to provide advice to people in their state who purchase one of your forms and request help in filling it out. At least one attorney in each state should be fluent in Spanish, as many of your customers will not be native English speakers.
You should have a written agreement with each of these attorneys, along with some hard evidence that they are in fact admitted to practice law in their state. You should also require an attorney to respond to a customer’s e-mail within 24 hours if they wish to remain in the “stable”. I would also recommend that you be named as an “additional insured” on each lawyer’s malpractice insurance policy, just in case they give bad advice.
Next, when customers request advice on your website, they should be prompted to type in their city, state and ZipCode, along with their credit card information for the attorney’s fee. Each inquiry would then be forwarded ONLY to a “stable” attorney who is licensed in that state (if there is more than one “stable” attorney in a particular state, inquiries can be sent sequentially to each one so as to spread the work evenly). The lawyer contacts the customer via e-mail, and the fee is forwarded to the attorney.
Can you take a percentage of the “stable” attorney’s fee? I wouldn’t. First, most states have laws prohibiting attorneys from sharing fees with nonlawyers. Second, splitting the fee may expose you to legal liability as the attorney’s “partner” if the lawyer is sued for malpractice.
Is this a foolproof way to set up a legal documents website? Of course not. But if you are serious about building such a website, you will have to ensure that legal advice is given only by attorneys who are licensed in the state where the customer is located and are familiar with the type of document the customer has downloaded.
Otherwise you are almost certainly engaged in the “unauthorized practice of law,” and somebody, somewhere, will try to shut you down. Lawyers are notoriously aggressive in protecting their turf, and it’s really tough to find a lawyer willing to defend a client against his own bar association.
Cliff Ennico (www.succeedinginyourbusiness.com), a leading expert on small business law and taxes, is the author of “Small Business Survival Guide,” “The eBay Seller’s Tax and Legal Answer Book” and 15 other books.