The Total Absence of “Judgment and Discretion”

The South Carolina Supreme Court held that LegalZoom is not engaged in the unauthorized practice of law.  Before anybody cheers too loudly, it’s not because it’s such a great thing, but rather that:

“LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer,” Newman wrote in the report, adding that its “does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.”

So it’s a piece of paper with legalish sounding words on it which is neither better nor worse than the input of the person using it. What a shock.  So LegalZoom did what companies do when they have a victory in court. They issue a press release, as noted by 3 Geeks and a Law Blog.

“We are pleased that the South Carolina Supreme Court has approved LegalZoom’s business model allowing access to online legal documents,” said Ken Friedman, Vice President of Legal and Government Affairs at LegalZoom. “As with many state bars, when a record is made about LegalZoom’s products and services, the result is that our fundamental business model is found to be legally sound.”

Curiously, while their business product is “legally sound,” it’s because their products are not.

“Everyone deserves access to the civil justice system. We look forward to continuing to serve our many customers in the State of South Carolina,” added Friedman.

This is where the concept flies off the rails, where the non sequitur of access is conflated with a product whose foremost virtue is the absence of judgment and discretion.  The 3 Geeks commentary makes the same egregious error:

The term “Access to Justice” (A2J) is tossed around a lot in the legal world, but as the old saying goes, talk is cheap. It is common for state bar associations to step up and use another phrase to shoot down A2J projects or non-lawyers’ attempt to fill a gap in the legal process that is underserved. In most cases, it is seen as a ploy to protect the Bar Association’s members… at the expense of those needing help with a complicated legal system. One of the most contentious issues is on basic legal forms. Companies like LegalZoom have stepped in to create forms for the individual citizen, and have found many states are very reluctant in approving of their products and services.

At Above the Law, Carolyn Elefant raises some common reactions by lawyers to LegalZoom, some of which she deems fair and one of which she deems very wrong:

But there’s a fifth reaction to Legal Zoom – something along the lines of “Hey, it’s great if clients use LegalZoom. Means more work for me to clean up the mess.” That reaction has always bugged me on a visceral level, yet I couldn’t articulate my distaste. So I was gratified to see that legal profession observer Jordan Furlong did the work for me in a recent post entitled The Incidental Lawyer, where he argues that lawyers may relegate themselves to the periphery of the legal services market if we continue to respond to them “with hostility, or with arrogance.”

While this is sometimes said, it comes as a snarky, but secondary, reaction, combined with a primary point that LegalZoom’s inherent danger is that it leads people down a very dangerous path of failure, giving them the confidence to represent themselves without the knowledge or ability to do so competently.  Jordan, as is his wont, raises only the strawman that furthers his agenda.

I’ve  lost count of the number of lawyers who’ve chuckled at warnings about “non-lawyer” providers, saying (sometimes literally), “Ka-ching! Every time a client tries to use one of these companies, it just means more business for me when they come looking for help to straighten out the mess they made.” What a selfish, unprofessional attitude we’ve developed: comfortably serving our 15% of the market, blocking the other 85% from accessing whatever help they can get, and smugly feasting off the problems of those for whom even these efforts went wrong. And we wonder why people are looking for alternatives?

Perhaps Jordan hangs around with far bigger asshole lawyers than I have had the misfortune to run across, but nobody has ever seriously suggested such a cynical purpose.  The problem that always prefaced this snarky secondary comment was that the use of legal forms requires a foundation of knowing how to properly use the forms, what they mean, how to complete them and the various intricacies that go into making them effective for a given purpose. Not at all selfish, but grounded in the concern we have about people doing themselves grave harm.

And we wonder why people are looking for alternatives?

Nobody wonders about why people are looking for alternatives. We know why. We’ve long known why. Lawyers are expensive, and dead money. The reasons people need lawyers tend not to be fun things.  We are there when people have problems, and while we tell people we need to get paid, we can’t even guarantee success. It’s a lousy business model.

But then, the people who become lawyers, who go to college and then law school, who not only pay for the privilege, but give up years of earning to do so, hopefully (and this is added in because of those academics who still insist that law school isn’t a trade school, but must also teach such critical courses as Kierkegaard and the Law), so that they come out the other end reasonably capable of guiding people toward the best possible legal result.

If these nice people we call lawyers can’t survive because people can’t pay them enough for lawyers to pay rent, buy internet access and put shoes on their kids’ feet, then there won’t be anyone willing to be a lawyer. It’s not that we don’t love this profession, but our kids expect to eat every day. Just like non-lawyers’.  And it’s not a crime to expect all those years of study and sacrifice to allow a lawyer a middle-class lifestyle.

There is nothing about LegalZoom that should be viewed as a threat to our profession.  It is, however, a threat to the welfare of the very people in need of A2J, the ones that sad hearts cry for, as they receive fifth rate quality representation from a company whose legal rationale for existence is its lack of “judgment and discretion.”  Sorry, 3 Geeks, but this isn’t really a good thing, and you’re not doing the underserved a kindness by giving them a steaming pile of crap.

I do, however, fear people like Jordan Furlong, who promote absurd, simplistic strawman arguments in furtherance of the ReinventTheFutureofTheNewNormal, that preys upon those lawyers too confused and foolish to recognize the fallacies he spews. That anyone pays attention suggests that maybe the best argument for LegalZoom is that lawyers aren’t nearly as competent to perform their function as they should be, since anyone buying Jordan’s spiel similarly lacks “judgment and discretion.”

3 comments on “The Total Absence of “Judgment and Discretion”

  1. Bill

    His point is moronic. The closest to reality I think it comes is that many, decide to give LegalZoom type services a try after hearing commercials, then realize, very quickly, that it’s not as easy as it looks. The only mess there is to cleanup is the loss of $99.00 some.
    I wonder how many people use these services for anything past whipping up a will or really simple stuff?. IANAL but I know when I’ve written big checks to attys, it’s not been for a simple document, it’s been for long drawn out cases. There simply can’t be enough of this cleanup work out there for any lawyer to earn much more than lunch at McDonalds let alone make a strategy out of it. There are fools that represent themselves. I can’t prove it but I bet the demographic of people using LegalZoom to do anything serious overlaps with this crowd 1-1.

    1. SHG Post author

      Bear in mind that there are all sort of minor legal stuff that people have managed to handle for themselves for a very long time. It’s takes little knowledge, and there have always been legal forms for sale in stationary stores. But even with something “easy,” like a simple will, there are a host of things one must know in order to not screw it up. How to execute it. Considerations when selecting an executor or guardian. How to amend/modify after it’s executed. How to protect it. How to self-authenticate it.

      If you screw up any of these, that could spell disaster. It’s a terrible shame that well meaning folks, doing relatively easy stuff, make terrible mistakes for themselves and their families out of ignorance.

  2. Nigel Declan

    I’m sure all the people complaining about the hegemony of lawyers will be thrilled when LegalZoom expands their product line to include LegalCutz ™, designed to give people the access to surgery (A2S) they require for affordable prices, the access previously denied to them by the mean old Medical Associations in an effort to protect surgeons’ profits, rather than to prevent people from killing themselves and others. Surely if their business model is legally sound, the same ‘absence of judgement and discretion’ must surely make it medically sound as well.

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