Virtual Ethics for a New Age: The Internet and the Ethical Lawyer

Georgetown Journal of Legal Ethics, The, Summer 2004 by Blades, Melissa, Vermylen, Sarah

At www.amoralethics.com, David Palmer, the executive director and only active member of the Committee to Expose Dishonest and Incompetent Attorneys and Judges, provided free legal advice to viewers.132 As he explained on his website:

We are all led to believe that whenever we are faced with some legal matter that we automatically are required to employ an attorney. There are many matters of a legal nature that we can and should resolve on our own without incurring unnecessary expenses of an attorney. Although I am not an attorney, I can assure you that it is not necessary to be a lawyer in order to provide some guidance and/or advice on how to deal with your legal problems.133

Palmer's background was as a court reporter and legal clerk in the United States Army. Palmer was brought before the Ohio Board of Commissioners on the Unauthorized Practice of the Law.134 Although the Board found that the website was set up to provide legal advice, they did not find any evidence that Palmer had rendered specific legal advice to a specific person.135 In November 2001, a California judge ordered Palmer's website be "disassociated and disconnected from all Internet search engines, indexes, and providers" after hearing a lawsuit from an attorney Palmer had criticized on his site.136

F. INTERACTIVE WEB PAGES AND DOWNLOADABLE SOFTWARE

For people who want to draft their own wills, residential leases, articles of incorporation, or contractual agreements, there is a legal software market to satisfy the demand.137 A minority of states have determined that the unauthorized practice of law can still be found in the absence of any sort of personal contact between an attorney and his or her client.138 However, most have determined that there must be some type of personalized contact between the attorney and client.139 This means that, while interactive web pages and legal software are not per se unauthorized, any sort of personalized legal advice given may be considered "practice of law" to be regulated.140

Because this is such a new topic, the case law is sparse. Cases that are potentially useful are those regarding the sale of self-help books and do-ityourself legal kits.141 In Oregon State Bar v. Gilchrist,142 the court stated that "do-it-yourself divorce kits" were permissible where the publisher of the kits did not have "personal contact with their customers," because the kits did not render individualized advice.143 However, in Committee v. Parsons Technology,144 a Texas district court barred the sale of Quicken Family Lawyer, a software program that enabled laypeople to prepare their own simple wills and other legal documents, because the program "created an air of reliability about the documents, which increases the likelihood that an individual user will be misled into relying on them."145

In response to the court's decision, technology lobbyists pressured the Texas legislature into enacting an emergency amendment to the Texas Unauthorized Practice of Law statute.146 The statute now reads: "[T]He 'practice of law' does not include the design, creation, publication, distribution, display, or sale ... of written materials, books, 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."147 The Fifth Circuit reversed the district court's ruling after the Texas legislature enacted the statute.148 Ultimately, a task force was formed to examine the effect that computerization has had upon the practice of law.149 The task force determined that the Texas legislature's response was the appropriate one, and proposed a statute virtually identical to the one enacted by the legislature.150