Legal document assistant
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (December 2012)|
A legal document assistant (LDA, also commonly known as "document technician," "legal document preparer," "legal technician," "online legal document provider" and "legal document clerk") in the United States is a non-lawyer authorized to assist with the preparation of legal instruments. Unlike a paralegal, legal document assistants do not work under the supervision of an attorney.
A Legal Document Assistant is an American phenomenon created in response to the most strict licensing laws for attorneys in the world. The job was created by using the doctrine of pro se to enable someone to help another prepare a legal document. Except for Louisiana and Puerto Rico, in the United States only an attorney can advise and draft a legal document for another. With the self-help pro se concept and stock legal forms the Legal Document Preparer profession was born.
The role of a Legal Document Assistant varies significantly across legal jurisdictions, and therefore can be treated here in only the most general terms. Some acts performed by Legal Document Assistants may be lawful in one jurisdiction and prohibited in other jurisdictions.
Many LDAs view their professional history as descending directly from that of the "scribe," or "scrivener" (i.e., a "learned writer"); in fact, although California became the first state to formally regulate the profession, the first licensing proposal was the Oregon Scrivener's Act, introduced in the Oregon legislature in 1985. Effective July 1, 2003, Arizona began certifying individuals and businesses who prepare documents through its "Legal Document Preparer Program". The terms "legal scrivener" and "independent paralegal" were commonly used, beginning in the late 1970s, and up until 1994. In that year, the Bankruptcy Reform Act was signed into law by President Bill Clinton. Among other provisions, it banned the use of the word "legal," in any form, to describe the services provided by non-attorney document preparers, and also specifically created the term "bankruptcy petition preparer." This forced many LDAs who assisted with bankruptcies to search for new terms to describe their profession.
It is commonly accepted that the first well-known LDA was Rosemary Furman; Furman, a Florida resident had been a legal secretary for about 35 years, when she was laid off in 1976. Not finding anyone willing to hire a middle-aged legal assistant, she began offering her services as a free-lance paralegal. Within a short time, she had developed a thriving business, not, as she had originally anticipated, from lawyers needing assistance, but instead from consumers wanting to purchase legal documents directly, to represent themselves in matters such as divorces, name changes and guardianship proceedings. When Furman was charged by the Florida Supreme Court in 1977 for "unauthorized practice of law," she became somewhat of a national cause célèbre. In the long run however, she was unsuccessful, and after having her request for review by the United States Supreme Court denied, she elected to close her business and retire, rather than be sent to jail for contempt.
Current case law in Florida has established that a non-lawyer may sell blank legal forms, type legal forms completed by hand, and sell general printed legal information. The non-lawyer can not, however, advise a customer how to complete a legal form, as this constitutes the practice of law.
At about the same time that Rosemary Furman was receding from the public eye however, another woman began gaining national prominence for her role in the self-help legal profession. Peggy Muse, unlike Rosemary Furman, was not a retired legal secretary, in fact, she had never worked in a lawyer's office. An attractive woman in her 30s (in fact, a former model), Muse had been a consumer advocate for a small community newspaper in Medford, Oregon, where she lived with her three school-age children. When the column was canceled by the newspaper, she rented a small office space above a dress shop, and outfitted with a card table and two chairs, opened the Consumer Sounding Board (CSB); intended to be a private consumer advocacy agency, CSB soon grew into the business of preparing legal documents, as Muse discovered that one of the most common consumer complaints, related to the high cost of legal representation for relatively minor needs.
After establishing her office in Medford into a full-time storefront operation, with several employees, Muse moved to Oregon's largest city, Portland, and opened a second CSB office. Within a few years, she began to receive national attention, as well as attention from the Oregon State Bar. She was featured in a front-page sectional article in the Los Angeles Times, which in addition to detailing her Portland and Medford offices, also followed her in her mobile "paralegal van," as she went with an employee to set up shop in a small-town parking lot for a day, to offer her services to the residents of a rural area. Shortly after this, and after being featured in a segment of NBC's Today Show, she began offering franchises, as well as setting up additional company-owned offices. At its height, CSB had a total of 14 offices in 4 Western states. In 1993 however, after a 15-year legal battle, the Oregon Bar succeeded in convincing a judge in Medford to sentence Muse to jail for 20 days. Following that experience, she divested herself of her remaining offices, and moved to California, where she remains today, having been one of the first persons licensed there as an LDA, following the 1998 licensing act.
Legal Document Assistants in the State of California are still sometimes incorrectly referred to as "independent paralegals" or "freelance paralegals," even though it has been more than a decade since those terms became obsolete by law. On September 30, 1998 Governor Pete Wilson signed California State Senate Bill SB1418, regulating the legal document preparation profession in the State of California, and creating a new formal title, Legal Document Assistant (LDA).
While many LDAs have paralegal education and experience, in California they are not the same as paralegals. Under California law, a paralegal is prohibited from providing services directly to the consumer. Paralegals may only be employed by an attorney, law firm, corporation, governmental agency, or other entity; and work under the direct supervision of a licensed attorney within the scope of that employment.
Unlike paralegals, LDAs are authorized by law to provide legal document preparation services to consumers, after complying with the registration and bonding requirements. Neither paralegals nor LDAs are permitted to engage in the practice of law.
LDAs are not lawyers and do not offer legal advice, discuss legal strategies, answer questions of a legal nature, select forms for the consumer, or appear in court on the consumer’s behalf. They are professionals, qualified through education, training or work experience, authorized to assist consumers representing themselves in legal matters by preparing and processing the necessary legal documents.
A Legal Document Assistant, as defined by the California Business & Professions Code (Section 6400 (c)) is: "Any person who is otherwise not exempted and who provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter, or who holds himself or herself out as someone who offers that service or has that authority, or a corporation, partnership, association, or other entity that employs or contracts with any person who is not otherwise exempted who, as part of his or her responsibilities, provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter or holds himself or herself out as someone who offers that service or has that authority."
Certain types of legal documents can be drafted by a notary public in the State of Louisiana. Louisiana notaries public prepare and draft legal documents of a noncontentious nature (i.e. not for court cases) such as wills, trusts, marriage contracts, articles of incorporation, estate inventories, mortgages, real estate sales contracts, powers of attorney, etc. Aside from drafting, they are also authorized to make inventories, property descriptions, take company minutes, and appraise and convey real estate. Louisiana, along with Puerto Rico, have this exception because prior to inclusion in the United States, both were (and continue to be) under the civil law legal system. Under civil law, notaries are lawyers, which is why in Louisiana notaries are appointed for life and used to be licensed before the advent of practice of law statutes in the 1930s. Louisiana notaries public are not required to be attorneys or otherwise trained in law; however, they do have to pass an extensive exam on notarial law (i.e., the areas of law a notary can draft for - property law, estate law, family law, etc.), they must sign and witness the signing of the documents they draft (notarial acts), and register and file those documents with the local court.
As the preparation of legal documents becomes more and more computerized, the function of non-attorney document preparers has become less dependent upon the preparer's individual skills, and more upon the quality of their software. By the same token, the continued increase of the availability of document software, legal aid websites, and the like, make it more and more likely that persons with some level of computer skills will be able to prepare and file legal documents without attorneys, and in fact, may not need even the limited assistance offered by LDAs, to prepare competent and quality legal documents. In fact, in the late 1990s, the Texas Bar Association, recognizing the threat that this trend represents to the pocketbooks of lawyers, sued Nolo Press, the country's leading publisher of self-help books and software, for alleging that Nolo was guilty of practicing law without a license. Although the Federal Circuit Court hearing the case initially ruled in favor of the State Bar, ultimately, they were unsuccessful, as the Texas Legislature passed a law which clearly established that selling books and software on legal subjects could not be considered practicing law. The preceding sentence exemplifies why the Texas Bar Association's concern with "quality legal documents" prepared by non-attorneys extends beyond the mere "threat that this trend represents of [sic] the pocketbooks of lawyers," since the above mentioned law - Tex. Gov't. Ann. § 81.101 provides:
:(a) In this chapter the “practice of law” means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
(c) In this chapter, the “practice of law” does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, 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. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.
At the very least, it appears that the statute exempts only such books and software which "clearly and conspicuously state that the products are not a substitute for the advice of an attorney." Thus, under certain facts and circumstances, it appears that such software and/or books could still constitute the unauthorized practice of law absent a disclaimer as required by the statute. For a discussion of the specific facts that led a federal court to conclude that the developer, publisher, and marketer of Quicken Family Lawyer had engaged in the unauthorized practice of law in Texas (prior to enactment of section C, above), the reader is referred to Unauthorized Practice of Law Committee v. Parsons, 1999 WL 47235 (N.D. Tex. 1999)
In New York, "quality" legal documents are available online through the state court system.
- SCRIBE: What's in a Name?
- Arizona Judicial Branch http://www.azcourts.gov/cld/LegalDocumentPreparers.aspx
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- Fla. Bar v. We the People Forms & Serv. Ctr. of Sarasota, Inc., 883 So. 2d 1280 (Fla. 2004)
- California State Senate Bill SB1418
- California Business and Professions Code, Sections 6450-6456
- American Bar Association Standing Committee on Paralegals
- California Business and Professions Code, Sections 6400-6401.6
- Louisiana Notary Association
- See also 179 F.3d 956 (5th Cir. 1999) (Vacating permanent injunction and remanding to the district court in light of subsequent enactment )