NC Bar: “Decision Trees” and Algorithms Presents UPL Concerns

August 12th, 2014

Richard Granat reports that the North Carolina Bar rejected an amendment that would narrow the definition of practice of law:

“(b) The phrase “practice law” does not encompass any of the following:” … (2) the design, creation, assembly, completion, publication, distribution, display, or sale, including by means of an Internet Web site, of self-help legal written materials, books, documents, templates, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. “

Richard cites as “luddite” a statement to bar members, which specifically notes that Legal Zoom’s use of “decision trees” and “algorithms” are problematic for UPL purposes.

“However, LZ’s use of “decision trees” and other such algorithms to create legal documents tailor-made to the individual consumer does present significant concerns and the State Bar has endeavored to prevent LZ from engaging in these activities.”

Richard writes:

Talk about a “luddite” mentality — now North Carolina Bar wants to prohibit interactive legal software on the theory this is same as getting as advice from a lawyer. Maybe in the fullness of time getting legal advice and legal forms will be better than getting services from a lawyer. So what is the real justification — full employment for lawyers. The Bar argues that they are protecting the interests of the consumer. But  lawyers in North Carolina only serve the to 25% or so of the population with the remaining the 75% left to their devices. The argument doesn’t hold up. You can’t argue that you are protecting the safety of consumers when you are only serving a small proportion of the addressable market.

I’ve had this exact conversation with several legal-tech startups. Algorithms with imbedded legal judgment–lawyers advising coders–may in fact constitute the practice of law. Though this approach may be “luddite,” under prevailing law it is probably UPL.