Larry Ribstein links to a new article considering whether the First Amendment can protect Legal Zoom (which has been subject to charges of unauthorized practice of law in Missouri and Alabama of late). Here is the abstract of Does LegalZoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law.
The article first sketches some potential problems with the reflexive assumption that LegalZoom and its fellow travelers are engaged in the unauthorized practice of law. Even assuming that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees. In particular, to the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article sets forth some of the possible First Amendment arguments available to document preparers, without extensive elaboration, to call attention to the possibility that they may be raised in defense to an unauthorized practice prosecution. It concludes with a caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.
Larry plucks a great quote about how the bar’s aggressive stance against the competition may backfire, noting “In other words, by arguing that any individualized advice about the law by a non-lawyer is illegal, the bar has exposed all of this regulation to the risk of invalidation.”
The legal profession has deliberately left itself free to define a host of activities as “unauthorized practice” on an as-needed basis. This flexibility may have served the bar’s regulatory needs in the past, but it could prove fatal to enforcing unauthorized practice laws in the face of a serious First Amendment challenge. The broad and standardless definition of “practice of law” could then collide with the requirement of specificity and narrow tailoring that underlies many aspects of relevant First Amendment doctrine. Whether or not these First Amendment arguments may succeed ultimately in the courts is less important than the fact that they have a sufficient basis to complicate any action for unauthorized practice.
Larry notes, this type of suit may be ripe:
The political and market pressure to deregulate and thereby lower the costs of legal services may make this regulation a particularly inviting target for First Amendment claims. In contrast with Citizens United, a case on the constitutionality of unauthorized practice could be portrayed not as big corporations against the little guy, but as the little guy against a powerful entrenched interest group of greedy lawyers. This could make the claim a useful lever to bring down large chunks of regulation of truthful commercial speech.
I think I have already fashioned my first major law suit for some point in the future–a declaratory action challenging statutes criminalizing the unauthorized practice of law under a number of grounds–void for vagueness, due process (procedural and substantive), the First Amendment, and, of course, the Privileges or Immunities Clause. Perhaps some online tool that provides what may be deemed a legal service staffed by non-lawyers–such as offering predictions how courts will resolve a case–would make for a great Plaintiff. Part of the plan.