A very good profile on Justice Thomas’ 20th year on the bench.
A very good profile on Justice Thomas’ 20th year on the bench.
A must-read post from Larry Ribstein about allegations that LegalZoom.com is engaged in the unauthorized practice of law in Missouri. Here is the gist of the suit:
Specifically, the plaintiffs allege that LegalZoom, a do-it-yourself online legal document service that launched in 2001 and was co-founded by O.J. Simpson lawyer Robert L. Shapiro, is engaged in the unauthorized practice of law. The case asks whether, under Missouri law, LegalZoom’s server-based decision-tree software is providing services that really ought to be performed only by chin-stroking counselors-at-law licensed by the Missouri state bar.
U.S. District Judge Nannette Laughrey, sitting in Jefferson City, Missouri, will rule on LegalZoom’s legality within the next few weeks, or she could kick the question over to a jury to decide after trial, which would begin in late summer. Either way, the case will produce what appears to be just the second court ruling ever on the legality of legal self-help software. The first one, by a federal judge in Dallas in 1999, ruled that the Quicken Family Law software package did violate Texas law, but the ruling was set aside on appeal after Texas amended its laws to permit such products. (Definitions of law practice vary from state to state; California and Arizona, for instance, have provisions authorizing nonlawyers to prepare legal documents under specified circumstances.)
How exactly is the practice of law defined in the Show-Me State:
Missouri’s statutes define law practice as, among other things, “the drawing or the . . . assisting in the drawing for a valuable consideration of any paper, document or instrument affecting . . . [legal] rights.”
I have no doubt a lawyer, seeking to protect his rents, drafted that overly broad, restrictive statute.
On its face that language certainly sounds broad enough to cover what LegalZoom does. But in 1978 the Missouri Supreme Court effectively narrowed that language when it reviewed a case in which Missouri bar authorities sought to punish the sellers of a divorce kit that consisted of nothing but blank legal forms and instruction booklets for filling them out. The court ruled that merely marketing such materials did not amount to practicing law absent “personal advice as to legal remedies or the consequences of flowing therefrom.”
Accordingly, the opposing parties in Janson v. LegalZoom now attempt to describe LegalZoom’s service in words that tend to squeeze it either into or out of this precedent’s safe harbor. In legal filings, the plaintiffs say LegalZoom “prepares customized legal documents, tailored for the use of individual customers.”
Not at all, responds LegalZoom. Rather, it “provides an online platform for customers to select and create their own legal documents.”
Ribstein [who for purposes of full disclosure has agreed to join Legal Zoom’s “legal advisory counsel”] makes a number of important points (and really points he has been making for a decade, long before this new position). Most salient, is how the Bar is attempting to fight back against technology, rather than embracing it.
Cases like the one in Missouri represent the last gasp of a dying approach to the transmission of legal information — the exclusive reliance on one-to-one customized personal communication of information in the Internet and computer age. In the long run markets and superior technology will win this battle — they always do. In the short run, millions of ordinary consumers are locked out of low-cost ways of contending with an increasingly regulated and legalized society.
Lawyers should have to demonstrate in the marketplace and explain to consumers why they should be consumers only way of getting legal information. This isn’t even about replacing lawyers. LegalZoom at least gives consumers the views of the lawyers who helped develop the product as to how legal documents should be prepared, which the consumers can then compare with the work of a lawyer they may have gotten from their brother-in-law or the Internet.
From an “Access to Justice” perspective (certainly the buzz word of the day), these types of service allow those without means to afford an expensive cartelized attorney the ability to protect their rights and property interests.
Moreover, lawyer licensing has a greater effect on availability of legal services for low-income people or those involved in smaller transactions. Forcing these economically marginal clients to buy Cadillacs when they only need Chevrolets may cause them to rely on self-help, and thereby reduce the quality of services these clients actually receive. The impact has been ameliorated somewhat by exempting legal assistance for the poor from unauthorized practice laws. But since these exemptions leave the least sophisticated and therefore most vulnerable clients exposed to supposedly unqualified practitioners, they suggest that lawyer licensing is more concerned with protecting lawyers’ profits than with protecting the public.
Attorneys should recognize the trends, and try to incorporate these technologies into their practice to make them better able to serve their clients–don’t fight the future; the future always wins (even if you don’t win the future). In fact, as Ribstein argues, these types of technology can actually create lawyer jobs!
And in Practicing Theory I show how the development of these products could open up new, high-end design-type jobs for people with legal skills to replace jobs that could be replaced by machines. Although I don’t view lawyer protectionism an appropriate regulatory goal, it’s worth noting that this isn’t about whether machines will replace lawyers. Rather, it’s about whether new technologies will channel legally trained people toward more socially productive activities.
I initially used LegalZoom.com to incorporate the Harlan Institute in Pennsylvania. I found their services exemplary. In fact, I originally wanted to call it the Harlan Institute for Constitutional Studies, but one of the Legal Zoom employees tipped me off that in Pennsylvania, if you put the word “studies” in the name, you needed approval from the State Department of Education (which they never gave). That is the type of thing I thought an online service would miss, and I would need a lawyer to know the ins and outs of local law. I eventually reincorporated with a Pro Bono Law Firm (that we could never have actually afforded) in the District of Columbia for some other reasons, but I would highly recommend LegalZoom.com for people looking for high quality level services at a great price.
Stay tuned. Lawyers will soon get desperate, and I predict they will eventually lose.
From the Chicago Sun TImes:
Mayor Rahm Emanuel will introduce an ordinance next week to allow gun ranges to operate in Chicago.
To obtain a gun permit in Chicago, residents must now travel to a suburban gun range to complete a mandated firearms training course.
The city is currently facing a federal lawsuit saying the city’s ban of gun ranges in the city has created a burden for those seeking a Chicago gun permit.
The new ordinance should address the concerns raised in the lawsuit, officials say.
The proposed ordinance limits gun ranges to areas zoned for manufacturing. Outdoor ranges would be banned.
Anyone opening a gun range would have to obtain a gun permit from the city and obtain approval from the Chicago Police Department for a safety plan.
I’m not sure what effect this will have on Ezell v. Chicago, a suit currently pending in the 7th Circuit challenging the lack of any gun ranges in Chicago in light of the City’s requirement that firearm permit applicants undergo training at a range.
H/T Instapunidt
Lyle and Tony have thorough explanations of the SG’s plea to the Supreme Court to stay the execution of Humberto Leal. In short, this case is a follow-up to Medellin II. Leal was a Mexican national who was not afforded access to a consulate, in contravention of the Vienna Convention. In Medellin the Supreme Court found (among other things) that the Convention was not self-executing and Congress needed to enact legislation to put it into effect. Medellin was in 2008. Fast-forward to 2011, and Congress has still not enacted the appropriate legislation.
Here, the Solicitor General asks the Court to stay the execution, at least until the end of the current session of Congress, in order to give the Legislature time to enact the requisite statutes. The Administration supports it, and a sponsor in the Senate has introduced the bill.
One of the interesting aspects of this plea is the SG’s request to stay it to give Congress a chance to change the law:
This case is therefore more akin to those in which the Court has exercised its discretion to stay its mandate in order to provide Congress with a reasonable opportunity to enact legislation in light of a judicial decision. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88 & n.40 (1982) (ordering a “limited stay” in order to “afford Congress an opportunity” to enact legislation that would “reconstitute the bankruptcy courts” in response to the Court’s decision); Buckley v. Valeo, 424 U.S. 1, 142-143 (1976) (per curiam) (entering a stay to afford Congress an opportunity to reconstitute the Federal Election Commission). Those authorities suggest that, in circumstances affecting vital government interests, this Court may exercise its discretion under the All Writs Act to maintain the status quo for a limited period in order to provide an opportunity for Congress to take necessary action.
Update: This plea makes me think of NAMUDNO, where the Court basically told Congress that the Voting Rights Act was unconstitutional, but they would give them some time to fix it. Curious why that case wasn’t cited.
During the Annual Fourth Circuit Court of Appeals Conference, Chief Justice Roberts made a number of comments on a wide-range of issues, from Justice Kagan’s new frozen yogurt machine to the benefits of hiring of law clerks without experience to the value of legal scholarship. Someone in the crowd asked a question about televising proceedings.
The Chief claimed that cameras are not necessary, and in fact the Supreme Court is the most transparent branch of government.
“We are the most transparent branch of government. Everything we do that has an impact is done in public. We don’t do the deliberations. You see the work in public in the Court. Our opinions are out there. You see the materials we look at in the briefs. What is not public are internal conferences.” (I have not located an official transcript; this is my best attempt to accurately type what the Chief said).
Is this accurate? The Court, without explanation, decides only the cases it wishes. They deliberate and assign authorship in private. Sometimes Justices even add appendixes of information outside the record because the briefs are apparently not sufficient. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery.
The Chief also commented that introducing cameras into the Legislative branch has actually degraded the quality of those proceedings.
“I’m told, the way society is, things don’t really happen unless you see them on TV. The Supreme Court is different. I’ve talked to people in the Senate and they think televising debates in the Senate has ruined them. Anyone who sees them, there is always one person standing at the podium and no one else there, people tell me it didn’t use to be that way.”
After a comment by Judge Wilkinson, lamenting the fact that great speeches from Daniel Webster and Abraham Lincoln were never recorded, the Chief remarked that “It would be interesting to know what governmental institutions function better now that they’re on television”–the Court or the Legislature.
Cross-Posted at ConcurringOpinions.com.