Can a lawyer partner with a nonlawyer to sell a web-based, automated legal information system without assisting the unauthorized practice of law?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer wants to enter a for-profit joint venture with a nonlawyer to offer the public, for a fee, a web-based online legal information system. Customers are told up front that they will not communicate with or receive information from any individual. Instead, the system asks them a series of stored questions and returns previously stored legal information or forms based on their answers. The opinion asks whether the lawyer would be promoting the unauthorized practice of law, and answers no.
The opinion applies Oregon RPC 5.5(a), which bars a lawyer from practicing law in violation of a jurisdiction's regulation of the profession or assisting another in doing so. It reasons that "the practice of law involves, among other things, the application of a general body of legal knowledge to the problems of a specific entity or person," quoting OSB Formal Ethics Op. No. 2005-101, and that marketing general legal information does not constitute UPL, citing OSB Formal Ethics Op. No. 2005-107. It relies on Oregon State Bar v. Gilchrist, where the Oregon Supreme Court held that selling do-it-yourself divorce kits with forms and instructions is not the practice of law so long as the sellers do not personally advise customers; the line is crossed only when there is personal contact in the nature of consultation, recommendation, or advice about a particular customer's matter.
The opinion concludes that the sale by nonlawyers of self-help legal software, whether run on the purchaser's own computer or online, simply is not the practice of law. Where the system clearly indicates to customers that no human interaction is available, the absence of human interaction is dispositive. A footnote notes other states have followed Gilchrist, distinguishing the sale of legal kits from a purveyor who goes beyond selling information and makes judgments about how a particular person should complete the forms.
In practice
The opinion holds that, under the Oregon rule as it stood at the time, an automated legal information product crosses into the practice of law only when a human applies legal knowledge to a specific person's problem. Per the opinion, the dispositive fact is the absence of human interaction, made clear to customers, so a lawyer who participates in offering such a fully automated system does not assist UPL under Oregon RPC 5.5(a). Verify the current text of Oregon RPC 5.5 before relying on any specific point.
Common questions
Q: Is an automated online legal information system the unauthorized practice of law?
A: No. The opinion concludes that selling self-help legal software, run locally or online, is not the practice of law where customers are told there is no human interaction; that absence of human interaction is dispositive.
Q: Can a lawyer go into business with a nonlawyer to offer this kind of system?
A: Yes, on these facts. Because the system is not the practice of law, the opinion concludes the lawyer does not assist UPL under Oregon RPC 5.5(a) by participating in the venture.
Q: What would turn the product into the practice of law?
A: Personal contact applying legal knowledge to a specific customer's matter. The opinion, following Gilchrist, identifies consultation, recommendation, or advice about how a particular person should use the forms as the line that constitutes the practice of law.
Background and rules framework
The opinion interprets Oregon RPC 5.5(a) (a lawyer may not practice law in violation of a jurisdiction's regulation of the profession, or assist another in doing so), which corresponds to Model Rule 5.5. It applies the Oregon Supreme Court's definition of the practice of law as the application of legal knowledge to a specific person's problem, and treats the presence or absence of individualized human advice as the dividing line.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 5.5(a) / Model Rule 5.5 (unauthorized practice; assisting another)
Statutes:
- ORS 9.460 (practice of law)
Cases:
- Oregon State Bar v. Gilchrist, 272 Or 552, 538 P2d 913 (1975) (selling do-it-yourself divorce kits is not the practice of law absent personal advice)
- New Jersey State Bar Ass'n v. Divorce Ctr. of Atl. Cnty., 194 NJ Super 532, 477 A2d 415 (Ch Div 1984)
- In re Thompson, 574 SW2d 365 (Mo 1978)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-101 (rev 2015) (definition of the practice of law)
- OSB Formal Ethics Op. No. 2005-107 (marketing general legal information is not UPL)
- OSB Formal Ethics Op. No. 2005-115 (rev 2014) (lawyer cannot aid nonlawyer corporation in giving legal advice)
See also
- OSB Ethics Op. 2005-107: Producing General Legal Information Tapes
- OSB Ethics Op. 2005-115: Aiding Nonlawyer Estate-Planning UPL
- OSB Ethics Op. 2022-200: Remote Work and the Unauthorized Practice of Law
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-137.pdf
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