Can Robots Practice Law?

Posted in: Law Practice

Can robots practice law, and if they can, is it the unauthorized practice of law? To answer those questions, we have to answer another one: what is the practice of law?

The definition of unauthorized practice is significant because the remedies can bite. First, there is the loss of fees. The client has the right to refuse to pay the fees if the person practiced law without authorization. It does not matter that the person did a great job. The person can even be a lawyer, but if the lawyer is not authorized in the particular jurisdiction, the lawyer loses fees.

In modern times, lawyers admitted in other jurisdictions may “appear” and give advice, via email, Skype, telephone, and so forth, without ever entering the jurisdiction. The client, or an agent of the client, may visit the lawyers with offices in another jurisdiction, or the lawyers may visit the corporate headquarters. A leading case denying fees is Birbrower, Montalbano, Condon & Frank v. Superior Court, which the California Supreme Court decided in 1998. In that case, lawyers from outside California arranged to begin arbitration, negotiate settlement on behalf of their client, and periodically travel to California to advise a California client on a dispute with another California-based company. Birbrower denied fees. The shadow of Birbrower is long, although not all jurisdictions follow it.

Courts also enforce unauthorized practice through contempt of court and through lawyer discipline (although that remedy would not apply if the individual is not a lawyer admitted in any jurisdiction).

Courts do not enforce unauthorized practice by denying the attorney-client privilege. Restatement, Third, The Law Governing Lawyers § 72(1), summarizes existing law when it states that a communication that is otherwise privileged does not lose its privilege as long as it is with a person “who is a lawyer or who the client or prospective client reasonably believes to be a lawyer.” Comment e adds, “Communications to a person who falsely poses as a lawyer are privileged, so long as the confiding client reasonably believes that the imposter is a lawyer.” (Emphasis added.)

In most states, unauthorized practice is also a criminal offense (typically a misdemeanor). Although criminal prosecutions are rare, one would think that because unauthorized practice is a crime, normal due process would require that that the state define the offense with reasonable clarity. As for the clarity, not so much. The ABA has compiled a list of state definitions of the unauthorized practice of law, and it shows a hodgepodge of definitions.

In some cases, there is a statute; in others, there are only court decisions. In Oklahoma, for example, R.J. Edwards, Inc. v. Hert tells us, it is “unnecessary that we should otherwise have defined ‘practice of law’ to include specific acts as a prerequisite to the exercise of the proper jurisdiction of the judicial department.” The Hert court also says, “Our decisions definitely spell out the concept of the practice of law: the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent.” In spite of Hert’s statement, “Our decisions definitely spell out the concept,” it cites no decisions from Oklahoma.

Arkansas’s state supreme court tells us, in Arkansas Bar Association v. Block, “Research of authorities by able counsel and by this court has failed to turn up any clear, comprehensible definition of what really constitutes the practice of law. Courts are not in agreement. We believe it is impossible to frame any comprehensive definition of what constitutes the practice of law. Each case must be decided upon its own particular facts.—The practice of law is difficult to define. Perhaps it does not admit of exact definition.”

In contrast, Arizona, Supreme Court Rule 31 offers a lengthy definition of the practice of law that goes on for nearly 2,800 words. Practice of law includes “expressing legal opinions.” Rule 31(a)(2)(A)(2). That should put a lot of TV commentators and law professors out of business.

Every jurisdiction agrees that appearing in court on behalf of another is the practice of law. However, the Restatement also tells us, “every jurisdiction recognizes the right of an individual to proceed ‘pro se,’” because “the appearance is personal only.” But if lay people may represent themselves, why may they not choose another layperson to appear on their behalf?

When the ABA drafted its Model Rules of Professional Conduct, Rule 5.5 prohibits unauthorized practice but does not define the crucial term. Its Comment 2 figuratively threw up its hands in frustration: “The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.”

Several years later, in 2002, the ABA tried to bring order to this disarray. It created a Task Force on the Definition of the Practice of Law, which proposed this definition:

(1) Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others;

(2) Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person;

(3) Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or

(4) Negotiating legal rights or responsibilities on behalf of a person.

After consumer groups and a Federal Trade Commission official criticized this definition as anticompetitive in 2003, the ABA withdrew its effort to define the practice of law. Its proposed definition reserved too many things to lawyers. Why shouldn’t a father be able to advise his daughter about her legal responsibilities when driving? E.g., “Don’t admit anything if a policeman stops you.” Why shouldn’t a clerk at the post office be able to help a taxpayer “select” which form to use to file his taxes? There are many things that lawyers do (file taxes) that non-lawyers (CPAs) also do.

The former ABA Model Code of Professional Responsibility (1970) included a provision, Ethical Consideration 3-5, that advised, “the practice of law relates to the rendition of services for others that call for the professional judgment of the lawyer” and that consists of the lawyer’s “educated ability to relate the general body and philosophy of law to a specific legal problem of the client.”

Several years ago, at an ABA conference, a lawyer in the audience said that if a computer could do it, it’s not the practice of law. That view reflects EC 3-5. If we think of the practice of law as using our judgment to apply the law to specific facts, then we would not think that robots or computer programs could practice law. However, the case law does not clearly embrace that concept, and newer Artificial Intelligence (AI) is pushing the boundaries on using judgment to apply the law to the facts.

In Unauthorized Practice of Law Comm. v. Parsons Technology, Inc., 1999 WL 47235 (N.D. Tex. 1999), a federal district court held that the creators of Quicken Family Lawyer were guilty of unauthorized practice. The “Family Lawyer” software package contains over 100 legal forms that Quicken represented were “valid in 49 states.” The program asks questions about the user and, based on the responses, generates forms to deal with the user’s problem in the user’s jurisdiction, while expressly disclaiming that it is providing “specific information for your exact situation.” One might think of this software program as very large law book with a really good index.

The court held that both the preparation of legal forms and the selection of which form to use constitute the practice of law in Texas. Shortly after the Quicken decision, the Texas legislature enacted a law specifically providing that “the ‘practice of law’ does not include the design, creation, publication, distribution, display, or sale [of] 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.” The law was effective immediately. The Fifth Circuit vacated the lower court injunction and judgment in light of the statute.

Companies are now routinely using computer programs to respond to subpoenas and to implement legal holds and data preservation. In 2013, a survey showed about 34% of corporations were using automated software for legal holds. By 2017, this number rose to 57%. Of those 37% still using manual holds, 58% were confident they could defend their procedure, while 79% of those using computerized software were confident. For those using computers, 84% sent periodic reminders to their custodians, but only 56% did that if they used manual legal holds. Once a matter is over, 75% of automated legal hold users sent out release notification, versus only 58% of those in the manual hold category.

Artificial intelligence not only handles discovery, but it is used by investigators to detect securities fraud and insider trading, by examining patterns of how stock prices move compared to use of email and other data points. It appears to make a judgement by connecting dots.

There now is a computer program that has successfully challenged parking tickets for drivers in London and New York City. It has taken 250,000 cases and won 160,000 of them. The “bot” (internet jargon for an application that performs automated tasks) asks questions and then makes the “judgment” that an appeal is justified. If so, it creates a letter to bring to court. It has expanded to all 50 states and in the last two years defeated 375,000 parking tickets.

The creator of this application is expanding to other applications—to help the newly evicted file for housing relief, challenge a landlord’s refusal to return a security deposit, fight fraudulent charges on a credit card, complain about workplace discrimination, and canceling a free trial.

Type “how artificial intelligence is tran” into Google, and it will automatically fill out the rest, and the top most search is, “how artificial intelligence is transforming the legal profession.”

AI will not eliminate lawyers any more than ATMs eliminated bank employees. It will change the way lawyers work and, by making lawyers more productive, it may well change the number of lawyers society needs.

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