Unreal
So, you use comercially available software to help a little old lady draft a will. Suddenly, you’re guilty of unauthorized practice of law.
Update: Xrlqy Wrlqy gets his snark on. Sorry, I just don’t buy that printing a page from software is the practice of law. Sounds to me like the guy was trying to help a little old lady out.
Update 2: Disagreement in comments. I’m not convinced of any nefariousness on the part of the agent but Xrlq is.
Update 3: In comments, Xrlq says:
BTW, I just read the opinion. Drafting her will was not his only act of UPL. The other consisted of drafting a general power of attorney, conferring all sorts of rights on himself, apparently without even encouraging her to seek counsel from someone who (1) knows what the hell he’s doing and (2) doesn’t have a potential stake in the matter himself.
In that case, it seems there was some shenanigans if not outright nefariousness.
January 29th, 2007 at 11:43 am
Yep
Nothing to see here.
Move on.
January 29th, 2007 at 11:52 am
Who said it was? Did you read the original story, or just the blogwhine to which you linked? The court was clear on the point that he didn’t just type as she dictated. He selected the form, filled it in and printed it out in her absence, and either didn’t have her review it, or at least failed to preserve any evidence that she had. The court was clear on the point that if all he had done is type what she dictated and print out the form for her to sign, he would have acted merely as a scrivener, and not committed UPL.
Sure he was. I’m sure all those insurance products he sold her were just trying to help her out, too, not an effort to make any money. I’m sure he’d be equally understanding if I moved to South Carolina and started selling competing products next door without being licensed as an insurance producer. I’m just trying to help a little old lady out. Or an old man, or a young man, or a young lady, or whoever else can use my help. I’m just a helping kind of guy.
Funny how you skipped the part about how this wonderful humanitarian who was just trying to help an old lady stood to receive 5% of her estate by being named as her personal representative. Maybe she just wanted to help him out, too.
January 29th, 2007 at 12:05 pm
From the article:
Looks to me like Weiss was involved in the process. This person filled it out and printed it.
And the 5% looks to be mandated by state law. And I don’t find it particularly odd that he’d stand to make some money from it while helping a client. That’s what people tend to do in their jobs.
ETA: But the article does say there’s not sufficient evidence to support the extent of her involvement.
January 29th, 2007 at 12:56 pm
I read this article, (free) on c-net.
# Xrlq Says:(over at his blog)
I don’t understand this comment. Your implying that because he got paid, then it’s not OK? Yet it would be perfectly fine of him to take the fee if he was a lawyer? And also, it would be perfectly fine of him to use the software if he was not paid at the end?
Setting aside any claims of swindling (because there’s not enough information) I’m really upset about this. It’s a blatant attempt by the lawyers guild to lock up services for themselves.
I don’t see this as any different from the “United Brotherhood and Sisterhood – gas station attendants local 449” passing laws to keep self-serve pumps out of New Jersey or the Doctors of Optometry lobbying to keep lesser trained sellers of eyeglasses from being able to use eye drops during exams.
Further on in the article I’ve linked to, there’s a little blurb about the lawyer’s guild going after a publisher called NoLo. I use and recommend their books because, frankly, legal advice has gotten far to expensive.
As an example of protectionism via law, you merely need to look at small claims courts in most states. The recoverable limits are so low, and usually you can’t recover even the value of your own time, let alone punitive damages. You could represent yourself in standard court, but there if you don’t know your ex post facto from your habeas corpus, you’ll likely have your suit dismissed with Prejudice faster than you can say pro se.
I’m 100% pro-capitalism, but this just sets up a legal no-man’s-land where those corporate-personhood thingys can rip off citizens for a few thousand dollars, and it’s wholly uneconomic for the citizen to sue. Sure you can go small claims, but, again, you can’t recover your time, and you can’t inflict a cash penalty to keep that corporate-personhood thingy from doing the same damn thing to your neighbor.
In fact, the only time the legal profession is interested in these types of low value suits is where they can aggregate them together into a class action suit. Example: Milli Vanilli class action suit, where the consumers got coupons for more crap from Arista, while the lawyers scored $675,000 in fees.
plenty more examples right here.
January 29th, 2007 at 1:01 pm
^^cross posted over at Xrlq’s but it was flagged as spam.
January 29th, 2007 at 2:47 pm
SU: no one disputes that the decedent had some involvement in the process, the question is how much. If the agent had done NOTHING except input what she dictated, that would not have been UPL in anybody’s book. But that’s not what happened. He, not she, selected the form. That act alone may have determined whether her estate should be divided per stirpes, modified per stirpes, per capita, or Lord knows what else.
SM: if he hadn’t gotten paid, his actions would still be UPL. My point about the money wasn’t that there’s anything wrong with being paid for services rendered – although there is plenty wrong with being paid to perform services you could not legally perform. It was to rebut Uncle’s cheap sympathy ploy about how this poor guy was just trying to help an old lady, when in fact he was a businessman trying to make a buck providing services he was not qualified to provide. If anything, the fact that his victim was 92 is an aggravating factor, not a mitigating one. This helpful soul only wanted 5%, others want more.
Your analogy to New Jersey gas pumping laws is laughable. Anyone can pump gas. Not anyone can draft a valid will, let alone competently advise a client on how best to structure it. Do you really trust insurance agents to consistently succeed where Chief Justices fail?
January 29th, 2007 at 3:05 pm
The question I have is did she (like i did with my lawyer) tell him what she wanted and he drafted it? If so, I see no harm in that.
January 29th, 2007 at 3:13 pm
It’s not that simple of a question. If all he had done was take dictations, with her directing every move, that would be fine. But if she relied on his judgment to do a lawyer’s job, it’s not. Why did you hire a lawyer rather than an insurance agent (or, for that matter, draw up a will of your own)?
January 29th, 2007 at 3:26 pm
i’m not sure from the article that she necessarily relied solely on his judgment. Why did I hire a lawyer? Because I have the money to and that’s who usually does it. Prior to that, I did my own using some sort of legal software package.
January 29th, 2007 at 3:34 pm
Certainly there are situations where a real pro is needed. I’m gonna want a heart surgeon to do heart surgery. But I’d argue that I don’t need a doctor (or even a Nurse Practitioner) to get a flu shot. I don’t even need a medical professional at all to get my ears pierced.
From that c-net article:
So, yes, the gas pumpers union was a bit absurd. I hope the humor was amusing. But I noticed you didn’t touch my argument about the small claims courts having low limits and no punitive damages. Or all those class action suits that end up handing out coupons to the victims. Or the optometrist v. optometry over the eye-drops. I could also point out every single outlet box in my house, wired by a pro, inspected by the county maggots, yet installed incorrectly. Yet by law, it’s illegal for me to do any work (for free I might add), on my own home’s wiring unless I get the special permission slip from the state.
If you are libertarian-leaning enough to object to any scheme by the state to mandate lawyer’s fees to their clients as a sliding scale based on income, why would you support the state guaranteeing legal protection for the lawyer business model? You know, long as someone does not misrepresent themselves being an actual licensed lawyer.
January 29th, 2007 at 3:45 pm
That’s actually pretty funny. Yes, you’re right though, I probably could do a better job than ex-supreme Burger by filling out one of those fill-in-the-blank forms and having it legally notarized in front of a few witnesses. Of course, I’d be cheating some legal professional out of his or her rightfully deserved fee.
God help us if those publishers over at NoLo make the legal system that’s suppose to be, you know, of, by and for the people, more understandable to merely normal people.
The next thing you’ll see is people fixing their own cars, painting their own walls, and mowing their own yards.
January 29th, 2007 at 4:20 pm
SM, the reason I didn’t address your comments about small claims courts, class actions (please don’t call them “class action suits,” a redundant phrase and a pet peeve) or the rest because frankly, I don’t see what it has to do with the topic at hand. Ditto for your comments about laws prohibiting you from wiring your own house. No law prohibits you from drafting your own will, representing yourself in court, or performing any other attorney services – for yourself. That’s not the issue here.
As to the notion that people should be able to knowingly hire nonlawyers if they so choose, I don’t necessarily disagree. However, I don’t expect such a radical libertarian proposal to pass in any state anytime soon, and I’ve certainly got better things to be outraged over than the fact that the South Carolina Supreme Court unanimously declined to become the first state in the union to try that experiment.
January 29th, 2007 at 4:21 pm
BTW, I just read the opinion. Drafting her will was not his only act of UPL. The other consisted of drafting a general power of attorney, conferring all sorts of rights on himself, apparently without even encouraging her to seek counsel from someone who (1) knows what the hell he’s doing and (2) doesn’t have a potential stake in the matter himself.
January 29th, 2007 at 4:31 pm
Well, that’s not good.
January 29th, 2007 at 5:14 pm
The “outlet box” comment was another example of professionals making mistakes, even though they were licensed by the state. It’s much like your example of ex-supreme Burger example. The “blank” forms many people fill out are prepared (or at least reviewed) by lawyer and designed to be easy and affordable for use by a layperson, yet still fulfill legal requirements.
The other examples address a slightly larger issue of affordable access to our legal system. I thought that was pretty clear. I’m pretty sure I also remember cases where the lawyer’s guild [1] goes after CPAs and Realtors for practicing law by giving tax saving advice or filling out blanks in real estate contracts.
You could argue all day that this lady would have been better served if she had purchased the services of a real lawyer, and a real lawyer should be mandated by law, but that’s the analogy of tearing down substandard housing and leaving people homeless because their houses aren’t up to code.
If you’ve got links to the judgment online, it would be nice to post them, but again, I’m not going to defend any swindling, just the use of tax preparing and estate planning software.
[1] I know there’s now lawyer’s guild, just like there isn’t any “local 449” in New Jersey. However, I also know that there isn’t any self serve pumps allowed by law in New Jersey either.
January 30th, 2007 at 10:59 am
SM, the fact that professionals sometimes make mistakes is irrelevant to this guy’s UPL charge. It’s worth noting, however, that most lawyers know wills are not a cakewalk, and are reluctant to take on the task unless they really know that area of law pretty well. Most non-lawyers take the same attitude Warren Burger did. And if a lawyer does bugger up your will, at least your intended devises can go after him for malpractice. If this guy had buggered up the woman’s will (he didn’t, but the next insurance agent to play lawyer very well might), they’d have no recourse at all.
Equally irrelevant are your allegations that other states’ bars have taken hyperaggressive definitions of “practice of law” in other cases. Perhaps they have. So what? It has nothing to do with Griffin’s case. Which, by the way, is here.