Can a lawyer ethically sell 'do it yourself' divorce kits to the public?

Plain-English summary

The committee was asked whether attorney sales of "do it yourself" divorce kits are ethical. It answered no.

The committee applied Rule 1.1, which requires a lawyer to provide competent representation, meaning the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. It reasoned that selling such kits carries an implicit assumption the purchaser will handle the matter without much, if any, additional legal advice. The concern is that a client who buys the kit from an attorney will assume it meets their needs without further consultation, raising a real possibility of harm if the kit fails to address particular needs that may not have been contemplated when it was sold. The selling attorney is left having made the kit available without being able to monitor the client's peculiar needs. The committee concluded that providing legal services cannot be equated to selling a product, because such services often must be tailored to each client's unique circumstances.

Currency note

This opinion was issued in 1990, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Why does selling a divorce kit raise a competence problem?

A: The opinion reasons that the buyer is likely to assume the kit meets their needs without further advice, while the selling lawyer cannot monitor the client's particular circumstances, in tension with the competence duty of Rule 1.1.

Q: Can legal services be sold like a product?

A: The opinion concludes they cannot, because legal services often must be tailored to the unique needs of each client rather than packaged as a one-size product.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.1 (Competence; Model Rule 1.1), which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.1 (competence) / Model Rule 1.1

See also

• State Bar of Montana Ethics Op. 870709: A Misleading Workers' Comp Newspaper Ad
• State Bar of Montana Ethics Op. 030716: Attorney May Not Create a Lawyer Referral Service

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/900409.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION
QUESTION PRESENTED: Are attorney sales of "do it yourself" divorce kits ethical?

ANSWER: No.

ANALYSIS: Model Rule 1.1 provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Implicit in the sale of these kits is the assumption that the purchaser/client will be able to handle the matter without much, if any additional legal advice.

The concern is that the client, having purchased the kit from an attorney, will assume that it meets his needs without further consultation with an attorney. This presents the very real possibility that the client will suffer harm as a result of failure of the kit to meet particular needs (which may not have even been contemplated when the kit was sold).

The seller/attorney is placed in the position of having made such a kit available to the purchaser/client without being able to monitor the peculiar needs of the client. The providing of legal services cannot be equated to the sale of a product. Such services often must be tailored to the unique needs of each client.

THIS OPINION IS ADVISORY ONLY