The History of the Legal Document Preparation Industry
by Richard Granat, Esq.
Director, Legal Technician Training Institute

Introduction

The idea of law without lawyers is not new. What is new is the increase in pro se representation over the past thirty years, and the increase in information and services that are specifically designed to enable consumers to represent themselves. The practice of non-lawyers preparing legal documents for consumers is an outgrowth of efforts in the early 1970’s to provide better access to the legal system for individuals who could not afford the high cost of legal fees.

Early Developments

In 1967 The New York Court of Appeals over-turned the conviction of Norman Dacey, the non-lawyer author of How to Avoid Pro bate (Crown Books), holding that the publication and sale of a how-to legal book for laypeople did not constitute an unauthorized practice. [N.Y. County Lawyers’ Association v. Dacey, 234 N.E.2d 459 (1967).] The decision paved the way for the self-help law book industry, and was a precursor to the evolution of the legal document preparation industry.

In 1971, Nolo Press, published its first self-help law book, How to File Your Own Divorce in California, by Charles Sherman. Two years later, Sherman and Ralph Warner – Nolo’s Chairman of the Board and co-founder – started an independent chain of divorce centers to assist people in using the book. The centers operated as a typing service, transcribing information provided by their customers onto forms provided by the book. Sherman continued to operate one of the centers for several years, but Warner left to concentrate on publishing self-help law books through Nolo Press. Many of these early document preparation centers remain today as independent operations. Today Nolo Press is the leading self-help law book publisher and its web site is one of the most popular web sites on the Internet for consumers seeking legal information and legal self-help products.

These early divorce centers attracted the attention of the State Bar of California, which scrutinized their operations to see whether they were in violation of unauthorized practice of law statutes. However, the centers were able to avoid charges of unauthorized practice of law by arguing that:

· Customers had to make their own decisions based on reading self-help books;
· No legal advice was given, a point made clear by the center’s staff;
· The only services that the centers provided were legal information services and typing services. They were not offering the services that lawyers provide.

More Recent Developments: Arizona, California, Florida and Washington

A number of states began to officially recognize legal document preparers as early as the mid-1970s. In 1976, Colorado enabled document preparers to prepare divorce forms so long as the functions carried out were only those of a scrivener. In other words, if the document preparer remains solely in the role of a public stenographer and takes down the customer’s words verbatim, he or she is not guilty of practicing law without a license. [See generally, Colorado Bar Assn. v. Miles, 557 P.2d 1202 (1976).]

By the early 1980s, approximately 100 independent paralegals existed in Florida, California and several other Western states. In addition to divorce, they began preparing documents for other legal proceedings, including bankruptcy, step-parent adoption and change of name. By the mid-1990s, California alone had as many as 2,000 individual document preparers, and in a number of other states, including Florida, Arizona, Oregon and Texas, legal document preparation by non-lawyers was common.

As the legal document preparation movement gained momentum, legislation affecting the new industry was introduced in a number of states. Some bills were designed to make it clear that the delivery of basic legal document preparation services by non-lawyers was legal.

California
In 1998, almost 25 years after the California divorce centers first opened, the California Legislature enacted legislation recognizing and regulating the industry. Effective January 1, 2000, all California independent paralegals (now called Legal Document Assistants), had to register with the Department of Consumer Affairs, post a bond, and meet minimum education and experience qualifications.

Arizona
In January 2003, the Arizona Supreme Court approved an Administrative Order establishing the regulation and certification of legal document preparers in Arizona.
The new rule, which went into effect in April 2003, established:
· A code of ethics for legal document preparers;
· Consumer protections;
· Legal document preparer certification requirements based on education and experience;
· A Board to monitor and implement the new rule.
The new law authorized non-lawyer legal document prepares to:
· Provide general legal information, but not to provide any specific advice, opinion or recommendation to a consumer about legal rights, remedies, defenses or strategies;
· Provide general factual information pertaining to legal rights, procedures or options available in legal proceedings;
· Make legal forms and documents available to those representing themselves in legal matters;
· File and arrange for service legal documents for a person not represented by an attorney.

The Administrative Order is viewed as a significant development, as proponents consider the Order a model for certification of legal document preparers in other states. It received strong support from the Bar Association, independent paralegals in Arizona and consumer advocates. Some feel the rule is outside the Arizona Supreme Court's inherent power, which is limited to the regulation of legal services. They feel the order constitutes the regulation of legal information services, as distinguished from legal advice, which many have argued is constitutionally protected under the 1st Amendment of the U.S. Constitution. Some have expressed disapproval of the new rule, arguing that strict rules of certification only serve to further limit access to the legal system. In addition, opponents argue, the new regulations fail to address online legal document providers.

Florida
The Florida Supreme Court has amended the rules regulating the Florida Bar Association to read:

It shall not constitute the unlicensed practice of law for non-lawyers to engage in limited oral communications to assist individuals in the completion of legal forms approved by the Supreme Court of Florida. Oral communications by non-lawyers are restricted to those communications reasonably necessary to elicit factual information to complete the form(s) and inform the individual how to file such form(s).

The Florida Supreme Court has approved a wide variety of legal documents, including divorce, landlord-tenant and other routine legal issues, allowing Florida independent paralegals to help consumers free of unauthorized practice of law worries.

The Florida court found that the service provided by legal document preparers would not amount to the “practice of law” as long as the service was “merely clerical.” The court reasoned that:
· It is not unauthorized practice of law (UPL) to make forms available for clients’ use;
· It is not UPL to fill in forms and file and serve them at the specific direction of the client;
· It is not UPL to give a client a detailed manual containing specific advice;
· It is not UPL as long as the service doesn’t personally advise the client with regard to his or her particular case.

Washington
The Washington State Bar Association is currently considering legislation that would authorize legal technicians to serve the public directly. The Washington State legislation is based upon the Arizona model and also has the strong support of the organized bar.

ABA Commission on Non-Lawyer Practice

In 1993, then American Bar Association President George E. Bushnell commissioned a panel to make recommendations regarding non-lawyer practice. The report was sent to a committee of the Board of Governors, but was never presented to the House of Delegates. The recommendations were never implemented. The report recommended that:

· Increasing access to affordable assistance in law-related situations is an urgent goal of the legal profession and the states;
· Protecting the public from the harm of persons providing assistance in law-related situations is also an urgent goal;
· When adequate protections for the public are in place, non-lawyers have important roles to perform in providing affordable access to justice.

Zona Hostetler, a Washington, D.C. attorney who sat on the Commission, believes that the report is crucial towards educating the public about the contributions of non-lawyers to the legal system. “The real question posed by this report,” stated Ms. Hostetler, “ is whether the attorney community will begin to think more creatively about the role of non-lawyers, and what will happen in state [bar associations] and state legislatures to bring about mass acceptance of non-lawyers’ roles?” Ms. Hostetler stated that new ways of meeting the legal needs of people have to be found, because she feels that, although there are plenty of attorneys in practice, the legal needs of people, especially those who cannot afford to hire a lawyer, are not being met.

In 1996, HALT—Americans for Legal Reform hosted a national conference on independent paralegal issues. The conference concluded that legal document preparers should support abolishing all unauthorized practice of law rules while working together to develop self-regulatory programs designed to assure the public that document preparers provide a safe and reliable service.

The Advent of the Internet

In the mid-1990s, the internet emerged as a new platform for the delivery of legal information and legal document preparation services. In March, 1994, Nolo launched one of the first legal information web sites, followed a month later by the launch of Socrates.com. In December, 1995, Findlaw, the first major destination website for free information on state statutes, federal statutes and case law was launched. Today, Findlaw is owned by West-Thompson. In August, 1996, the Peoples Law Library of Maryland was launched, becoming the first state-wide legal information web site offering state specific legal forms. USLegalForms.com, a major legal forms portal followed in December, 1997.

Websites offering legal forms and legal document preparation services proliferated in the late 1990s. They included: The Divorce Law Information Center (1997), MyLawyer.com (1998), The Name Change Law Center (1999), Docupro.net (1999), Legalzoom.com (1999), lawexpress.com (2000), Rapidlaw.net (2002) LegacyWriter.com (2002), and BuildaWill.com. New legal forms and legal document preparation websites continue to emerge on a monthly basis. Online companies have not yet moved offline into retail space, but the move is inevitable due to the quality and efficiency of the legal documents produced using web-enabled technologies. They will soon enter into competition with the retail outlets already in place.

We the People USA

We The People USA, Inc., has emerged as the largest franchised chain of retail store outlets offering legal document preparation services directly to the public. We The People was founded in 1993 by Ira and Linda Distenfield when they purchased the concept and license from a Florida woman who had been running a document preparation service out of her home since 1985. With the concept and license in hand, they opened their first store in Santa Barbara, California. Since then, We The People has served over 550,000 customers in 200 offices across 32 states. In March, 2005, We The People was acquired by Dollar Financial Corp. (NASDAQ: DLLR).

Future Role for Legal Document Preparers and Legal Technicians

Both online and in storefronts, the role of legal document preparers continues to evolve. With the internet and other resources increasing the availability of legal information, the demand is great for professionals who can navigate and filter the information for individuals seeking to represent themselves in their legal endeavors. Today, legal document preparers find themselves in the same position paralegals found themselves in the early 1970s. At that time, attorneys were reluctant to use paralegals and it took over a decade for paralegals to enter the mainstream in the legal profession. Today, most effective and efficient law firms employ paralegals for a wide variety of responsibilities.
Similarly, over the next decade we will see the rapid growth of non-lawyer paraprofessionals who play a critical role in providing access to the legal system for millions of Americans by providing legal information and legal document preparation services directly to consumers at a price that is affordable.
back to top
__________________________________
© Copyright, Richard S. Granat, 2005

Richard Granat is Director of the Legal Technician Training Institute, and was formerly the President of the Institute for Paralegal Training, the nation's first paralegal training institution. He is also President of MyLawyer.com, Inc., a web-based legal information company and practices law in Maryland.