If LegalZoom is not engaged in the unauthorized practice of law, then what does the unauthorized practice of law mean?
In March, 2014, the South Carolina Supreme Court ruled that LegalZoom does not engage in the unauthorized practice of law through its internet sale of legal documents which are produced when customers answer questions through an intuitive and interactive computer program. If answering questions about how one is to dispose of their wealth upon death which results in a legally binding Last Will and Testament is not the practice of law, then what is?
Our statute which criminalizes the unauthorized practice makes the issue appear fairly straight forward: “No person may either practice law or solicit the legal cause of another person or entity in this State unless he is enrolled as a member of the South Carolina Bar pursuant to applicable court rules, or otherwise authorized to perform prescribed legal activities by action of the Supreme Court of South Carolina. The type of conduct that is the subject of any charge filed pursuant to this section must have been defined as the unauthorized practice of law by the Supreme Court of South Carolina prior to any charge being filed. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.” S.C. Code, Section 40-5-310.
As it relates to the preparation of a Last Will and Testament, our Court previously declared in Doe v. Condon, Opinion 25138 (June, 2000), that even the preparation of such an instrument by a paralegal working under the supervision of an attorney is still the unauthorized practice of law:
The activities of a paralegal do not constitute the practice of law as long as they are limited to work of a preparatory nature, such as legal research, investigation, or the composition of legal documents, which enable the licensed attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort. [Citation Omitted].
While the important support function of paralegals has increased through the years, the Easler guidelines stand the test of time. As envisioned in Easler, the paralegal plays a supporting role to the supervising attorney. Here, the roles are reversed. The attorney would support the paralegal. Petitioner would play the lead role, with no meaningful attorney supervision and the attorney’s presence and involvement only surfaces on the back end. Meaningful attorney supervision must be present throughout the process. The line between what is and what is not permissible conduct by a non-attorney is oftentimes “unclear” and is a potential trap for the unsuspecting client. [Citation Omitted]. The conduct of the paralegal contemplated here clearly crosses the line into the unauthorized practice of law. It is well settled that a paralegal may not give legal advice, consult, offer legal explanations, or make legal recommendations.
So apparently, the Doe paralegal may not interview a client and input the client’s desires into a Will template to be reviewed and approved by the attorney without committing the crime of engaging in the unauthorized practice of law; however, it now appears that she could arguably create a for profit internet-based business to accomplish the same end. I’ll be the first to spot the Supreme Court that balancing the need to provide the general public with affordable access to legal services with the need to protect them from the unqualified and unscrupulous is a dicey undertaking at best. Adding to the complexity of the matter is the rapid evolution of technology and the emergence of “legal alternatives.” Even so, it’s going to take some time to discern what is permissible in the new internet legal environment. In the end, until they invent a web-site that can walk into a courtroom, arbitration or mediation setting and dispense the skill, zeal and advocacy of a real lawyer, I suppose the profession will survive.