Governing Policies and Procedures for Customer Support and Avoiding Potential Issues Regarding the Unauthorized Practice of Law (UPL).
Our mission at EZ-Probate is to democratize law and provide equal access to the legal system by empowering our customers to represent themselves in court and provide an easy to understand educational and form-filling system so that all persons can manage the routine and form-based elements of the law.
We strongly believe that all persons should have equal access to the legal and justice systems regardless of their social, racial, ethnic, and economic status. From our experience, we believe that the legal profession has done a poor job providing this access as legal fees are prohibitively expensive for vast sections of the U.S. population. The U.S. Federal Reserve has stated that almost 40% of American adults do not have $400 to cover any unexpected expenses. (U.S. Federal Reserve 2019)
This unequal access to the law has run parallel to many institutionalized and systemic inequalities, such as “red-lining”, and is expressed most prominently in the legal term “Heir Property” where title to a property is never legally transferred via the court system, rather it is transferred informally to family members. This process is the leading cause of involuntary land loss among persons of color, as more sophisticated persons of privilege then use the legal system to confiscate such property. (Propublica, 2019)
It is important to know the limitations of what we offer, and that we communicate clearly with our customers that we are not a law firm and we do not offer any legal advice. As our disclosure states:
“EZ-Probate does not provide legal advice, nor are we attorneys. We simply help you fill out publicly available forms and provide you with publicly available information. If you think you need legal advice please consult a licensed attorney.”
It is our position as a company that the legal profession has not clearly defined what is “the practice of law” and how to determine what is considered “legal advice”. In-fact only through costly litigation, and anti-trust victories against various state bar associations have companies like LegalZoom and Rocketlawyer carved out some semblance of “rules of the road” that online document preparation companies can follow.
Department Of Justice And Federal Trade Commission Openly Hostile Toward The Bar
According to the American Bar Association, “The Federal Trade Commission and The U.S. Department of Justice have long been hostile to a broad interpretation of UPL”. So much so that they (FTC and DOJ) wrote a letter admonishing the antitrust practices of bar associations and recommended to “revise the definition of UPL to avoid undue burdens of “self-help products that may generate legal forms. They [FTC and DOJ] stated that these self-help products and other interactive software programs for generating legal documents would promote competition by enabling non-lawyers to provide many services that historically were provided exclusively by lawyers. Interactive websites that generate legal documents in response to consumer input may be more cost-effective for some consumers, may exert downward price pressure on licensed lawyer services, and may promote the more efficient and convenient provision of legal services. Such products may also increase access to legal services by providing consumers with additional options for addressing their legal situations.” (American Bar Association Resolution 10A)
In the landmark case of LegalZoom vs. SC State Bar Association, the scrivener exception was used to state without question that LegalZoom did not offer legal advice as “LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer. The software does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.” (American Bar Association Journal, 2014)
Scriveners (scribes) were people who could read and write and were used to write official letters to the court (Kings and their counsel) and other official legal documents. The Scrivener exception exists to acknowledge the fact someone wrote a proclamation, the writer was not in fact, declaring himself the king or using any official power, the scribe simply was copying what was written or instructed for them to write. This principle is the essence of the legal preparation industry and legal document preparation by non-lawyers is not considered to be the "practice of law" as it falls within the “scrivener exception” to the definition of the practice of law in almost all states. The "scrivener exception" enables non-lawyers to assist parties in typing their legal forms and they can provide "legal information" but not legal advice. This exception has been codified by statute in some states such as California, Arizona, Florida, and North Carolina, and recognized by case law in other states. All states recognize the “scrivener” exception. Richard Granat, attorney.
Anti-Competitive, Anti-Trust Tactics Of The Bar
As a company, we believe that a reasonable person would conclude that the practice of offering a self-help, self-directed document preparation service is so firmly established as lawful and encouraged that virtually no guidelines would be required. This is not the case. There is a saying that law is not about justice, but finances. The online document preparation industry is threatening the economic system of law, and lawyers have and will fight vigorously to protect that economic interest. As a small startup without the resources of a giant corporation to be able to effectively fight the anti-competitive tactics, we must be highly diligent not to give any cause for scrutiny and consistently provide an informative educational environment without providing any advice on the course of actions that a person should or should not take.
With that in mind, we have established the below guiding principles and governing policies to ensure that we do not engage in the unauthorized practice of law in any of the 50 states and District of Columbia.
Is There A Clear Definition Of An Unlawful Act?
In our research, we only found one example where preparing a document for someone else was expressly prohibited in many, if not all states, The single example is preparing a deed for someone else if the preparer is not a licensed attorney in that state.
This makes sense as the preparer could easily slip wording into a deed and have the owner sign and have the property transfer in a way not intended.
Therefore it is prohibited for any EZ-Probate, Inc. employee, agent, representative, or affiliate (if any) to prepare a deed for a customer. We can however provide educational information on how one could prepare a quitclaim deed for oneself and provide examples and a template a customer can use.
For All Other Situations Where A Clear Definition Of An Unlawful Act Does Not Exist, The Following Principles Will Guide Us In Providing Clear And Accurate Information:
Customer Support Guiding Principles and Best Practices
1. Answer all questions with only factual information.
- Example: When a customer asks who they need to notify, or who inherits we can factually tell them that in the state where the deceased was a resident the probate code states and paraphrases in simple terms what the code is in that state.
2. Do not provide any specific advice or guidance on what a customer should or should not do.
- Refrain from outright providing advice, rather use phrases like “generally speaking”, “it is my understanding that,” and “here is what we have seen successful” when answering questions. When possible always refer back to Principal Number 1 and provide answers with only factual information. It is always correct to state factual statements about the probate process.
- Always use your best judgment but of course never provide information to the customer if you are unsure of the answer. Always reference online material or consult with a colleague who knows the answer.
3. Never change an answer in the questionnaire for a customer even if the answer is so obviously incorrect.
- It is important to follow the principle as stated in the landmark case of LegalZoom vs. SC Bar association that our software acts as a “mail-merge” system and we enter information verbatim as the customer provides.
- We can however inform the customer that an answer does not appear correct.
- One of the most common errors customers make is entering the county where the deceased lived and often enter “USA” (country) or the state again. We can google the county and ask the customer if that is the county of residence and then instruct them to change the questionnaire or ask them to instruct you to change the answer.
4. Ensure that the customers know that EZ-Probate is not a law firm and we cannot provide any specific legal advice, nor do we verify any information provided and we do not guarantee results.
- Whenever you begin to answer questions with customers state that “EZ-Probate is not a law firm and we cannot provide any specific legal advice however I can provide you some general information about probate so you can make knowledgeable and informed decisions.”
- Email signatures are required to have the following disclaimer: “EZ-Probate does not provide legal advice, nor are we attorneys. We simply help you fill out publicly available forms and provide you with publicly available information. If you think you need actual legal advice, please consult a licensed attorney. EZ-Probate does not review the veracity of any answers provided by customers in our questionnaire. It is the responsibility of the petitioner and the executor/administrator to ensure a true and accurate petition is presented before court.”
5. Ensure that our communication is clear and easily understandable to an average person with little to no prior knowledge about the subject at hand.
- When talking about the process it is important to use the specific terminology used in the probate code, however, it is imperative that we explain it in. Ex: when explaining who inherits when there is no will, and you introduce the concept of “Intestate succession” make sure to explain that is the process where the deceased next of kin (as defined by state law) have the priority to inherit as well as the priority to become the administrator, person in charge of the estate.
6. Ensure that we use the correct, valid, and most recent version of state forms, and at all times get the forms directly from the state.
- As a company we will:
- Routinely check for updates of each and every one of the state forms that we use,
- Clearly communicate with customers if their state form was updated, and if we failed to update our form, we will gladly, and expeditiously, update their probate packet without charge.
- Always check the state website for forms, if there are any forms not found directly from a state or county website notify company management as we will travel directly to that state and get forms from the free and public access forum called the “law library”.
7. When reviewing questionnaires or talking to customers, make sure to stay vigilant for signs that the case will require any legal advice and be upfront about our limitations as to what we can and cannot do for them.
- As a general rule, anything outside of the forms being prepared, instructions on how to file/process probate, take pause, and think if the question/situation can or should be considered legal advice. Always refer back to Principal #1 and provide factual information.
- Offer to provide referrals to licensed legal professionals in their state.
- Look for publicly available information written by a licensed attorney in that state, google search topic, and send links to the customer as an informational service.
8. Dispute Resolution.
- We are a software company and as such our product is the software and customers pay for the use of our software, not results or the outcome of their individual probate case.
- If our system does something incorrectly and a customer is unsatisfied we will gladly refund the purchase or provide an expedited remedy to the situation.
- If the customer is simply asking for a refund for reasons outside of the software producing accurate probate forms based on the customer provided information we do not offer any refunds.
9. Be familiar with our privacy and terms of service.
10. Above all else, be empathetic, respectful, and caring to our customers.
- Remember, they are coming to us because someone close to them passed and in most situations, they have first been mistreated by an attorney.
- Even with the most challenging individuals maintain composure and be courteous.
- I encourage all to end difficult situations with, “I’m sorry it appears that you may not be a good candidate for a self-help legal service, I highly recommend you seek proper legal advice”.