nach oben

Artificial Intelligence and Law

Erschienen in:

01.09.2010

The use of legal software by non-lawyers and the perils of unauthorised practice of law charges in the United States: a review of Jayson Reynoso decision

verfasst von: Taiwo A. Oriola

Erschienen in: Artificial Intelligence and Law | Ausgabe 3/2010

Einloggen

Aktivieren Sie unsere intelligente Suche, um passende Fachinhalte oder Patente zu finden.

search-config

KI-gestützte Suche

Aus

Abstract

This paper critically reviews the judgment of the United States Court of Appeals for the Ninth Circuit In re: Jayson Reynoso: Frankfort Digital Services et al., v. Sara L. Kistler, United States Trustee et al. (2007) 447 F.3d 1117. The appellants, who were non-lawyers, were indicted with unauthorised practice of law for offering bankruptcy petition services via online legal software or expert systems in law configured for filing bankruptcy petition forms. The United States Court of Appeals for the Ninth Circuit found inter alia that appellants were bankruptcy petition preparers, and not being lawyers, had exceeded their clerical remit by offering legal advice and legal services in contravention of California law regulating legal practice and 11 U.S.C. Sect. 110 of the Bankruptcy Code (2002). While examining the legal ramifications of the use of legal software by non-lawyers in the preparation of legal documents, the paper critically reviews the factual circumstances of the Reynoso decision in the context of juridical and statutory constructs of unauthorised practice of law in the United States. The paper poses the question whether Reynoso should be viewed as a one-off decision bound by its peculiar facts, or good law for the broad proposition that non-lawyers cannot use legal software in legal documents preparation. The paper also notes the possible legal barriers to an unconditional ban on the design, sale, distribution, and uses of legal software by non-lawyers. These range from the First Amendment right to free speech, constitutional right to pro se legal representation, interstate commerce doctrine, to antitrust provisions of the Sherman Act. A regime of best practices for the use of legal software or expert systems in law by non-lawyers is proffered.

Vorheriger Artikel Norm-system revision: theory and application

Sie haben noch keine Lizenz? Dann Informieren Sie sich jetzt über unsere Produkte:

Springer Professional "Wirtschaft+Technik"

Online-Abonnement

Mit Springer Professional "Wirtschaft+Technik" erhalten Sie Zugriff auf:

über 102.000 Bücher
über 537 Zeitschriften

aus folgenden Fachgebieten:

Automobil + Motoren
Bauwesen + Immobilien
Business IT + Informatik
Elektrotechnik + Elektronik
Energie + Nachhaltigkeit
Finance + Banking
Management + Führung
Marketing + Vertrieb
Maschinenbau + Werkstoffe
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Springer Professional "Technik"

Online-Abonnement

Mit Springer Professional "Technik" erhalten Sie Zugriff auf:

über 67.000 Bücher
über 390 Zeitschriften

aus folgenden Fachgebieten:

Automobil + Motoren
Bauwesen + Immobilien
Business IT + Informatik
Elektrotechnik + Elektronik
Energie + Nachhaltigkeit
Maschinenbau + Werkstoffe

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Springer Professional "Wirtschaft"

Online-Abonnement

Mit Springer Professional "Wirtschaft" erhalten Sie Zugriff auf:

über 67.000 Bücher
über 340 Zeitschriften

aus folgenden Fachgebieten:

Bauwesen + Immobilien
Business IT + Informatik
Finance + Banking
Management + Führung
Marketing + Vertrieb
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

Jetzt informieren

In Britain, the deregulation of conveyancing services in 1987 by the Thatcher government opened legal services market to licensed conveyancers who were not members of the legal profession, with dramatic decrease in conveyancing fees. See Leef (1997) (Winter 1997), at http://www.cato.org/pubs/regulation/regv20n1/reg20n1c.html (last accessed on 2 August 2010). However, while laypersons are not expressly prohibited from giving legal advice, they cannot misrepresent themselves as legal specialists. See Messina (2000), at 327.

Fischer (2000–2001); Ohio State Bar Association v. Newburn (2008) 119 Ohio St.3d 96, where Ohio Supreme Court held inter alia that “Our jurisdiction thus extends to regulating unauthorized practice of law, which we do to protect the public from agents who have not been qualified to practice law and who are not amenable to the general discipline of the court.” Ibid., at 97.

Online and offline documents on offer vary from wills, divorce, employment contract to agency contract. See www.desktoplawyer.co.uk (accessed on 2 August 2010).

See http://www.legalzoom.com/disclaimer-popup.html (accessed on 2 August 2010).

Gibeaut (1998), at 42 and 47.

Ibid.

Fischer (2000–2001), supra, note 3, at 138–139.

Leef (1997), supra, note 1.

Ibid.

Messina (2000), supra, note 1, 367, at 372. As noted above, this probably explains why the British firm, Desktop Lawyer, would not assume responsibilities inherent in lawyer-client relationships. See notes 4 and 5, supra.

Justice (1991, 179), Rentz (2005, Fall), Schwab (2000), Palomar (1991). However, for most, the unauthorised practice of law huddle remains an implacable barrier. This is exemplified by the 2008 Ohio Supreme Court decision, which found a professional surveyor whose work involved incidental preparation of conveyances, liable for unauthorised practice of law. The Court had held that the “… practice of law embraces the preparation of legal documents on another’s behalf, including deeds which convey real property.” See Ohio State Bar Association v. Newburn, supra, note 3, at 97.

For example, in New York County Lawyers’ Association v. Dacey, 283 N.Y.S. 2d 984, at 990, (App. Div.), Revised 234 N.E.2d 459 (N.Y. 1967). It was held inter alia that “[t]he copying or completion of a form may consist merely of clerical work but the selecting of the proper form and telling a clerk what to copy and how to fill in the blanks is lawyers’ work.” Also in Ohio State Bar Association v. Newburn, supra, note 3, at 97, the Ohio Supreme Court noted that the practice of law embraced the preparation of legal document.

The ubiquitous cash dispenser machines are an example of expert systems. For discussion, see Susskind (2000), at 162–176.

See Susskind (1987) at 3.

For example, legal information retrieval systems such as WESTLAW and LEXIS are crucial expert systems for legal academia and the legal profession. For discussion, see Susskind (2000), supra, note 14 at 221–222.

Oskamp and Lauritsen (2002), Susskind (1987), supra, note 15 at 3.

For discussion, see Lanctot 2002, supra, note 2, at 811–854.

Susskind suggested that legal advisers could most certainly be held liable for resultant losses from negligent advice proffered using expert systems in law. See Susskind (1996). See also Morrison (1989). The author opined that concerns for potential malpractice liability risks were a major obstacle to widespread adoption of rule-based expert systems by lawyers. Ibid; at 34.

The American Bar Association, Report of the Commission on Multi-jurisdictional Practice defines the term as “…the legal work of a lawyer in a jurisdiction in which the lawyer is not admitted to practice law.” See American Bar Association Centre for Professional Responsibility, Client Representation in the 21st Century: Report of the Commission of Multi-jurisdictional Practice (August, 2002), at http://www.judiciary.state.nj.us/notices/reports/abareport.pdf (assessed on 2 August 2010). The inherent multi-jurisdictional nature of online practice of law by lawyers is a concomitant externality to the increasing use of modern telecommunication technologies in legal practice. See for example the California Supreme Court dicta in Birbrower, Montalbano, Condon & Frank, P.C., v. Superior Court of Santa Clara County. 949 P.2d. at 4. The Birbrower court opined that a lawyer not physically present in California could still be deemed to practice law in contravention of California law forbidding out-of-state practice of law, if he advised a California resident client via telephone, fax, computer, or other modern technological means. Ibid. For discussion, see Glass and Jackson 2000–2001.

This is exemplified by the case of In re: Jayson Reynoso, Debtor, Frankfort Digital Services, LTD.; Henry Ihejirika, Appellants, v. Sara L. Kistler, United States Trustee, Appellee, and Executive Office of United States Trustee, Trustee. (2007) 477 F.3d 1117.

Lanctot (2002), supra, note 2 at 811–822, Glass and Jackson 2000–2001, supra, note 21 at 1195.

Ibid, at 1117–1126.

The facts of the Reynoso decision as restated here are drawn from the decision of the United States Bankruptcy Appellate Panel for the Ninth Circuit in re: Jayson Reynoso, Debtor. Frankfort Digital Services, LTD.; Henry Ihejirika, Appellants, v. William T. Neary, United States Trustee, Appellee. (2004) 315 B.R. 544, at 547–554.

Ibid.

The Bankruptcy Court for the Northern District of California’s ruling restated here, is as gleaned from the ruling of the United States Bankruptcy Appellate Panel for the Ninth Circuit in re: Reynoso, Jayson, (Debtor) Frankfort Digital Services, Ltd.; Henry Ihejirika (Appellants) v. William T. Neary, United States Trustee, (Appellee) supra, note 24. There is no recorded opinion of the Bankruptcy Court for the Northern District of California in the Reynoso case. However, a related proceeding (with identical facts involving a different debtor but same appellants Frankfort Digital Services et al.,) was heard by the United States Bankruptcy Court for the Central District of California, Los Angeles Division, and reported in re: Christiana Pillot, 2002 Bankr. LEXIS 1334.

Excerpted from the Bankruptcy Court for Northern District of California’s Transcript, 44:3–8, and cited in re: Reynoso, supra, note 24, at 552.

Ibid.

Ibid; at 553.

In re: Jayson Reynoso, (Debtor), Frankfort Digital Services, Ltd.; Henry Ihejirika, (Appellants), v. Sara L. Kistler, United States Trustee, (Appellee), and Executive Office of United States Trustee, (Trustee).Supra, note 21 at 1119–1126.

Ibid; at 1123.

Ibid.

Ibid., at 1125. At the commencement of the trial section 110(k) of Chapter 11 of the U.S. Bankruptcy Code (2002) did not specifically prohibit unauthorised legal practice. It provided that “Nothing in this section shall be construed to permit activities that are otherwise prohibited by law, including rules and laws that prohibit the unauthorized practice of law”. However, an amendment to the Bankruptcy Code via the Bankruptcy Abuse Prevention and Consumer Protection Act 2005 (BAP-CPA), Pub. L. No. 109-8, 119 Stat. 23, specifically barred bankruptcy petition preparers from providing legal advice. See Sect. 110(e) (2) of the Bankruptcy Abuse Prevention and Consumer Protection Act, ibid.

In re: Jayson Reynoso, supra, note 21 at 1125.

Ibid.

Emphasis is mine. Ibid.

469 P. 2d 353 (1970).

In re Jayson Reynoso, supra, note 21 at 1125.

Ibid.

Ibid., at 1117–1126.

Ibid., at 1126.

Ibid., at 1125.

Ibid., at 1125–1126.

Clerical work is generally perceived as limited to typing of information provided by the consumer without alteration, advice, or proffering of any opinion on the information. For discussion, see Lanctot (2002), supra, note 2, at 833–836.

Ohio State Bar Association v. Newburn, supra, note 3, at 97. The Ohio Supreme Court noted that the practice of law embraced the preparation of legal document. Ibid.

Lanctot (2002), supra, note 2, at 834.

Susskind (2000), supra note 14, at 162–176.

In re: Jayson Reynoso, supra, note 21 at 1125.

For discussion, see Rhode (1981).

15 U.S.C. Sects. 1–7 (2004) as amended.

Ibid., sections 1–2.

317 U.S. 341 (1943).

Trujillo 2006, supra, note 75, at 352.

Parkers v. Brown, supra, note 76, at 345–346.

Ibid.

Ibid., at 346.

Ibid., at 348–349.

Ibid., 350–351.

Ibid., at 314.

Ibid., 351–352.

Ibid., at 352.

445 U.S. 97 (1980).

Ibid., at 103.

Ibid.

Ibid., at 150.

Fischer (2000–2001), supra, note 3, at 138–139; Ohio State Bar Association v. Newburn, supra, note 2, at 97.

431 F. Supp. 298 (E.D. Va. 1977), vacated and remanded, 571 F.2d 205 (4th Cir.), cert. denied, 436 U.S. 941 (1978) (Hereinafter referred to as Surety Title Insurance Agency).

Ibid.

Supra, note 76, at 341–368.

Surety Title Insurance Agency v. Virginia State Bar, supra, note 92 at 308.

Supra, note 76, at 341; Elizabeth Trujillo, supra, note 75, at 352.

The emphasis is mine and intended to make a distinction between a restrictive use of legal software as demonstrated by Reynoso and a total non-conditional prohibition of the use of legal software by non-lawyers.

In re: Jayson Reynoso, supra, note 21, at 1117.

In the United States, all States regulate the practice of law via States unauthorised practice of law legislations and committees that operate under the auspices of States’ Supreme Courts. In the State of Ohio for example, Sect. 2(B)(1)(g), Article IV, Ohio Constitution, confers on the Supreme Court of Ohio, original jurisdiction over the “[a]dmission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law.” See Ohio State Bar Association v. Newburn, supra, note 2, at 97. For discussion, see Marie A. Vida, supra, note 91, 231 at 235.

421 U.S. 773, (1975).

Ibid., at 792.

100

Ibid., at 791.

101

Article 1, Sect. 8, Clause 3 of the United States Constitution.

102

491 U.S. 324, 326 n.1 (1989).

103

Supra, note 76, at 341.

104

Ibid, at 318.

105

Oriola (2005), 113–166, at 134–135.

106

CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 87 (1987).

107

Oriola 2005, supra, note 108, at 135.

108

Parker v. Brown, supra, note 76 at 341.

109

Ibid., at 360–367.

110

Ibid., at 360.

111

For discussion, see generally Oriola 2005, supra, note 108, at 134–140.

112

Software programs are protectable by patents and copyright laws in the United States. See Adelman (1998), at 105.

113

Faretta v. California, 422 U.S. 806, 807, (1975). Note however the qualification to the Faretta ruling by the U.S. Supreme Court in Godinez v. Moran, 509 U.S. 389 (1993), where the Court held inter alia that the constitutional right to self-representation in courts could be denied in a criminal case, if the accused was perceived as incompetent or unfit to represent themselves. Also the right to Pro se legal representation does not apply to appellate courts. See the Supreme Court decision in Martinez v. California Court of Appeals, 528 U.S. 152, (2000).

114

See for example Article 1, Sect. 10 of the Constitution of the State of Alabama 1901, (as amended) which provides: “That no person shall be barred from prosecuting or defending before any tribunal in this state by himself or counsel, any civil cause to which he is a party.”

115

Bankruptcy Code (2002) as amended, supra, note 55.

116

In re: Jayson Reynoso, supra, note 21, at 1123.

117

Ibid., at 1125.

118

For discussion see, Vincenti 1988, at 205.

119

Due to the fact that wills do create legal rights upon which courts may be called upon to interpret, and that wills making require a certain degree of confidentiality which legal attorneys are obliged to provide, courts often regard wills making as the exclusive preserve of lawyers. For discussion, see Palmer v. Unauthorized Practice Committee of the State of Texas, 438 S.W.2d 374 (Tex. Civ. App. 1969), at 377.

120

In re: Jayson Reynoso, supra, note 21, at 1123.

121

Ibid, at 1125.

122

Unauthorized Practice of Law Committee v. Parsons Technology, Inc 1999 WL 47235.

123

Ibid.

124

Tex. Govt. Code Ann. Section 81.101 (West 1998) (amended in 1999).

125

Supra, note 125.

126

Tex. Govt. Code Ann. Section 81.101 (Supp. 2000).

127

Unauthorized Practice of Law Committee v. Parsons Technology Inc., 179 F.3d 956 (5th Cir. 1999).

128

The First Amendment to the United States Constitution provides that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” For discussion, see Fischer (2000–2001), supra, note 3, at 136–137.

129

Treece (1999), 971, at 972.

130

283 N.Y.S. 2d 984, 996 (N.Y. App. Div. 1967), revised on the dissenting opinion, 234 in N.E. 2d 459 (N.Y. 1967).

Ibid., at 1000-01.

Ibid.

Ibid., at 1000.

492 U.S. 469 (1989).

Ibid., 471–472.

Ibid., at 482.

Rose (2002), at 585.

See Lanctot (2002), supra note 2 at 811–812.

139

For discussion, see Podgers 1980.

140

See Lanctot 2002, supra note 2 at 820–821.

141

Ibid., at 812.

142

In re: Jayson Reynoso, supra, note 21, at 1125.

143

Ibid.

144

Supra, note 58, at 353.

145

In re: Jayson Reynoso, supra, note 21, at 1125.

146

See for example, New York County Lawyers’ Association. v. Dacey, supra, note 133 at 996.

147

See Centre for Professional Responsibility, ABA, Task Force on the Model Definition of the Practice of Law, at http://www.abanet.org/cpr/model_def_home.html (last accessed on 2 August 2010).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

See American Bar Association, Task Force on the Model Definition of the Practice of Law, Standing Committee On Client Protection, Washington State Bar Association, Report To The House Of Delegates, Recommendation, at http://www.abanet.org/cpr/model-def/recomm.pdf (last accessed on 2 August 2010).

156

Ibid.

Adelman M (1998) Cases and materials on patent law. West Group, St. Paul, p 105

Denckla D (1999) Nonlawyers and the unauthorized practice of law: an overview of the legal and ethical parameters. Fordham Law Rev 67:2585

Fischer J (2000–2001) Policing the self-help legal market: consumer protection or protection of legal cartel? Indiana Law Rev 34:121–153 at 138–139

Gibeaut J (1998) Squeeze play: as accountants edge into the legal market, lawyers may find themselves not only blinded by the assault but also limited by professional rules. ABA J 84:42–47

Glass G, Jackson K (2000–2001) The unauthorized practice of law: the internet, alternative dispute resolution, and multidisciplinary practice. Georgetown J Leg Ethics 14:1195–1210

Justice K (1991) There goes the monopoly: the California proposal to allow non-lawyers to practice law. Vanderbilt Law Rev 44:184–185

Lanctot C (2002) Scriveners in cyberspace: online documents preparation and the unauthorized practice of law. Hofstra Law Rev 30:811–854

Leef G (1997) Lawyer fees too much? The case for repealing unauthorized practice of law statutes. Regul Cato Rev Bus Gov 20(1). Available at http://www.cato.org. Last accessed 2 June, 2010

Messina J (2000) Lawyer + layman: a recipe for disaster! Why the ban on MDP should remain. Univ Pittsbg Law Rev 62:367–372

Morrison R (1989) Market realities of rule-based software for lawyers: where the rubber meets the road. In: Proceedings of the 6th international conference on artificial intelligence and the law. ACM Press, New York, pp 33–36

Oriola T (2005) Regulating unsolicited commercial electronic mails in the United States and the European Union: challenges and prospects. Tulane J Technol Intellect Prop 7:134–135

Oskamp A, Lauritsen M (2002) AI in law practice? So far, not much. Artif Intell Law 10:227–236CrossRef

Palomar J (1991) The war between attorneys and lay-conveyancers: empirical evidence says cease fire! Conn Law Rev 31:423–530

Podgers J (1980) Statements of principles: are they on the way out? ABA J 66:129

Rentz M (2005) Laying down the law: bringing down the legal cartel in real estate settlement services and beyond. Georgia Law Rev 40:293–333

Rhode D (1981) Policing the professional monopoly: a constitutional and empirical analysis of unauthorized practice prohibitions. Stanford Law Rev 34:1–99CrossRef

Rose J (2002) Unauthorized practice of law in Arizona: a legal and political problem that won’t go away. Ariz State Law J 34:585

Schwab S (2000) Bringing down the bar: accountants challenge meaning of unauthorized practice of law. Cardozo Law Rev 21:1425–1468

Susskind R (1987) Expert systems in law: a jurisprudential inquiry. Oxford University Press, Oxford, p 3

Susskind R (1996) The future of law: facing the challenges of information technology. Oxford University Press, Oxford, pp 86–87

Susskind R (2000) Transforming the law: essays on technology justice and the legal market place. Oxford University Press, Oxford, pp 162–176

Treece T (1999) The law as a foreign language. South Tex Law Rev 40:972

Trujillo E (2006) State action antitrust exemption collides with regulation: rehabilitating the foreseeability doctrine. Fordham J Corp Financ Law 11:349–352

Vida M (2000–2001) Legality of will-creating software: is the sale of computer software to assist in drafting will documents considered the unauthorized practice of law? Santa Clara Law Rev 41:231–235

Vincenti R (1988) Self-help legal software and the unauthorized practice of law. Comput Law J 185:185–205

Titel: The use of legal software by non-lawyers and the perils of unauthorised practice of law charges in the United States: a review of Jayson Reynoso decision
verfasst von: Taiwo A. Oriola
Publikationsdatum: 01.09.2010
Verlag: Springer Netherlands
Erschienen in: Artificial Intelligence and Law / Ausgabe 3/2010
Print ISSN: 0924-8463
Elektronische ISSN: 1572-8382
DOI: https://doi.org/10.1007/s10506-010-9103-y

Springer Professional

Abstract

Bitte loggen Sie sich ein, um Zugang zu Ihrer Lizenz zu erhalten.

Sie haben noch keine Lizenz? Dann Informieren Sie sich jetzt über unsere Produkte:

Springer Professional "Wirtschaft+Technik"

Springer Professional "Technik"

Springer Professional "Wirtschaft"