I was intrigued by Sam Glover’s recent post on the Lawyerist wherein he argues “The business of disrupting law practice is a crowded field of solutions looking for problems.” While you can debate whether or not legal services are subject to disruption (and for some, I suppose, whether disruption is needed), I was primarily intrigued by Sam’s statement quoted above that law is at heart a personal service industry. His remark got me thinking about the delivery of legal services in the 21st century and whether this observation is 100% accurate.
Are legal services today exclusively a “personal services” industry? Or is part of law and/or are legal documents now a product? If part of law is a “product,” is that bad? Might the “productization” of basic legal services be part of the disruption that Sam argues is not needed and is not taking place?
In looking online, I found two different definitions of “personal services.” The Law Dictionary defines personal services as “any work done manually or intellectually, by a provider of services.” Law.com defines the term as “the talents of a person which are unusual, special or unique and cannot be performed exactly the same by another.” If you boil either of these definitions down to their core, “professional services” requires: (i) a person; (ii) work, either manual or intellectual; and (iii) some form of uniqueness.
In-person client counseling, client advocacy and negotiation, and specific drafting are all obviously “personal services”. But, what are RocketLawyer, LegalZoom, LegalDocs, LawDepot and LegalHelpmate?
As you may be aware, the South Carolina Supreme Court recently approved LegalZoom’s business practices in that state. The case behind this decision was brought by a former attorney general and state senator who alleged that LegalZoom was engaged in the unauthorized practice of law in South Carolina. As the Special Referee in that case wrote: “Based on the record in this case, LegalZoom’s online, interactive self-help form document services business practices do not constitute the practice of law according to South Carolina precedent.” He went on to approve the Settlement Agreement entered into between the parties.
The Settlement Agreement provides, in essence, that: (i) LegalZoom’s customers select their own forms by indicating their state of residence and the “desired product” [emphasis added]; (ii) the only online, interactive, self-help forms offered by LegalZoom are either (a) the same forms promulgated by South Carolina state and local agencies or courts, or (b) forms reviewed and approved by an attorney licensed to practice in South Carolina; (iii) the LegalZoom forms are available for review by a potential customer at no charge in advance of purchase; and (iv) the LegalZoom software ensures the customer’s answers are entered into the selected form verbatim.
A quick perusal of the LegalZoom website shows that a customer can purchase anything from a will, to a power of attorney, real estate deed, lease or an incorporation document. Typically, having a person prepare these types of documents using their own efforts and intellect (and accordingly resulting in some form of uniqueness) would constitute a “personal service” and would undoubtedly be seen as the practice of law in South Carolina. However, if the person, their work and the uniqueness are removed from the process, the document becomes a “product” in the words of the LegalZoom decision and its preparation is no longer the practice of law. From the consumer’s point of view, however, is there really much (if any) difference in the two documents — the one acquired from talking to the lawyer and the one generated from answering LegalZoom’s online questions?
It is the offerings of LegalZoom and its competitors that caused me to come to the conclusion that part of “legal services” is now a product, both in the eyes of consumers and the courts. And for a host of reasons, I think this is positive for consumers and for lawyers.
First, given the access to justice issues facing our country and legal system, the productization of certain types of legal documents strikes me as a very positive development. People who couldn’t afford a lawyer-prepared last will and testament are now able to get a computer-generated one for a small, flat fee and avoid intestacy and its inherent messiness. Pro se litigants can arrive in court better prepared and with their forms properly filled out. Tenants who rented an apartment, house or small business office space on a handshake deal, can now have the security of an enforceable lease for a hundred dollars and a few minutes spent on a website.
Second, whats not to like about broader distribution of general legal knowledge that leads to a more informed citizenry and to better informed clients knocking on lawyers’ doors? And whats not to like about having more transactions documented to help avoid misunderstandings and disputes?
Third, as I wrote in my first blog post on Artisanship, isn’t society better off if we can work towards at least some standardization of common legal documents? Do even the most basic leases or wills need to be the result of expensive, individualized, personal services? Or is there a basic “legal product” — whether it be a will, a lease or a deed — that would work for 90% of the population almost all of the time?
The internet has opened a world of legal information to the general public that used to be hidden in law libraries and locatable only through arcane headnotes or hiring a lawyer. I always get “dropped jaw” looks when I tell young lawyers that the first billable hour I recorded as a young lawyer in 1981 was photocopying a case to be mailed to a corporate counsel who didn’t have access to a law library. The thought of billing hourly for such a straight forward information retrieval project today would raise eyebrows to say the least. Maybe 30 years from now someone will tell a similar story about how they used to bill on an hourly basis for drafting generic nondisclosure agreements.
If increasing access to legal services and gaining the benefits of some level of standardization of legal documents means that more of lawyering might become a “product”, I’m all for it.