{"id":492,"date":"2007-01-25T15:03:48","date_gmt":"2007-01-25T19:03:48","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/01\/25\/filling-in-a-quicken-will-for-a-nonagen"},"modified":"2007-01-27T14:54:19","modified_gmt":"2007-01-27T18:54:19","slug":"filling-in-a-quicken-will-for-a-nonagenarian-is-upl-in-sc","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2007\/01\/25\/filling-in-a-quicken-will-for-a-nonagenarian-is-upl-in-sc\/","title":{"rendered":"filling in a Quicken Will for a nonagenarian is UPL in S.C."},"content":{"rendered":"<p><img loading=\"lazy\" decoding=\"async\" height=\"28\" alt=\"sharkS\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/01\/shark%20tiny%20gray.gif\" width=\"40\" \/>\u00a0 In July 2004, South Carolina insurance agent Ernest B. Chavis made a social visit to his former neighbor Annie Belle Weiss, who was then 91-years old.\u00a0 Because she trusted him to be &#8220;objective&#8221; (having also had\u00a0business\u00a0dealings with him), Ms. Weiss\u00a0asked \u201cCan you help me make a will?\u201d\u00a0\u00a0Chavis agreed to help\u00a0her with a simple will and\u00a0&#8220;she directed [Chavis]\u00a0as to how she wanted her property divided.&#8221;\u00a0\u00a0\u00a0His good deed resulted in a lawuit by her disgruntled heirs and, this week, in a <a href=\"http:\/\/www.judicial.state.sc.us\/opinions\/HTMLfiles\/SC\/26251.htm\">finding<\/a> that Chavis had engaged in the <em>unauthorized practice of law<\/em> [&#8220;UPL&#8221;].\u00a0 See\u00a0<em>NYTimes\/CNET<\/em>, &#8220;Police blotter: <a href=\"http:\/\/www.nytimes.com\/cnet\/CNET_2100-1030_3-6152761.html?_r=2&amp;oref=slogin&amp;oref=slogin\">Heirs sue over will-making software<\/a>,&#8221; by Declan McCullagh, for <em>News.com<\/em>, Jan. 24, 2007; via <a href=\"http:\/\/howappealing.law.com\/012407.html#021613\">Howard Bashman<\/a>\u00a0and <a href=\"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/01\/23\/legalzoom-and-the-future-of-lawyering\/#comment-578\">Orijit Ghoshal<\/a>)<\/p>\n<p>What behavior, which was done without pay,\u00a0won Chavis this condemnation?\u00a0 According to the unanimous decision in <a href=\"http:\/\/www.judicial.state.sc.us\/opinions\/HTMLfiles\/SC\/26251.htm\"><strong>Chavis v. Franklin<\/strong><\/a>\u00a0(Supreme Court of South Carolina, Opinion No. 26251, January 22, 2007),\u00a0he &#8220;used\u00a0a <em>&#8216;Quicken lawyer disk&#8217;<\/em> to generate a generic will on his home computer and he filled in the blanks.\u00a0 He brought the will to Ms. Weiss on July 31 when he went to visit her in the hospital and she signed it.&#8221;\u00a0 He also drafted a power of attorney for her (which the Court also deemed to be UPL). &#8220;The will names respondent as personal representative of Ms. Weiss\u2019s estate but he is not a beneficiary.&#8221;\u00a0\u00a0\u00a0\u00a0<br \/>\n\u00a0<a href=\"http:\/\/www.nolo.com\/product.cfm\/ObjectID\/6E9ED903-C9B4-42E0-9C2E235DD87A0A8A\/309\/\">Quicken\u2019s WillMaker Plus<\/a> 2007 <img loading=\"lazy\" decoding=\"async\" height=\"84\" alt=\"QuickenWillMaker\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/01\/QuickenWillMaker.gif\" width=\"65\" \/>\u00a0\u00a0\u00a0<\/p>\n<p>Here&#8217;s the Court&#8217;s reasoning in declaring Chavis&#8217; conduct to be\u00a0the Unauthorized Practice of Law\u00a0[emphases added]:<\/p>\n<ul>\n<li>&#8220;The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. [cite omitted]\u00a0 Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as <em>more than a mere scrivener<\/em>.\u00a0The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence\u00a0 . . . (\u201cThe amateur at law is as dangerous to the community as an amateur surgeon . . . .\u201d).&#8221;<\/li>\n<li><img loading=\"lazy\" decoding=\"async\" height=\"28\" alt=\"sharkS\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/01\/shark%20tiny%20gray.gif\" width=\"40\" \/>\u00a0\u00a0&#8220;The novel question here is whether respondent\u2019s actions in filling in the blanks in a computer-generated generic will constitute the practice of law.\u00a0 Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital.\u00a0 Although these facts are not in themselves conclusive, <em>the omission of facts indicating Ms. Weiss\u2019s involvement is significant<\/em>.\u00a0 There is no evidence Ms. Weiss reviewed the will once it was typed.\u00a0 The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.&#8221;\u00a0<\/li>\n<li>&#8220;We construe the role of &#8216;<em>scrivene<\/em>r&#8217; in this context to mean someone who does <em>nothing more than record verbatim what the decedent says<\/em>.\u00a0 We conclude respondent\u2019s actions in drafting Ms. Weiss\u2019s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.<\/li>\n<\/ul>\n<p>The Court also dropped a footnote [#5] emphasizing &#8220;The fact that respondent received no compensation is irrelevant.&#8221;\u00a0 It went on to favorably cite a Connecticut decision that noted &#8220;a lack of compensation in fact makes the situation worse&#8221; &#8212; because &#8220;the public, through natural cupidity, are the more readily attracted to something which appears to be a &#8216;giveaway&#8217; project or a chance to obtain &#8216;something for nothing.\u00a0&#8221;\u00a0 Grievance Committee of the Bar of Fairfield County v. Dacey, 222 A.2d 339, 351 (Conn. 1966).\u00a0 How&#8217;s that for respecting consumers?<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" height=\"24\" alt=\"LegalZoomLogo\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/01\/LegalZoomLogo.jpg\" width=\"80\" \/>\u00a0Of course,\u00a0it&#8217;s ludicrous to say\u00a0that a nonlawyer volunteer who uses a proven product like Quicken (or a document preparation tool life <a href=\"http:\/\/www.legalzoom.com\/\"><em>LegalZoom<\/em><\/a>), to help a friend with a simple will,\u00a0is &#8220;as dangerous to the community as an amateur surgeon.&#8221;\u00a0\u00a0 Moreover, it is simply bad policy.\u00a0 Rather than blindly apply old precedent to a modern context, this case\u00a0would have been an excellent\u00a0opportunity for the Court to bring the definition of the practice of law into the 21st Century.<\/p>\n<p>As Villanova law professor Catherine J. Lanctot wrote in &#8220;<a href=\"http:\/\/www.hofstra.edu\/PDF\/law_lanctot.pdf\">SCRIVENERS IN CYBERSPACE<\/a>: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW,&#8221; 30 Hofstra Law Review 811 (2002, 44 pp, pdf), those who wish to apply UPL enforcement against such software products or document preparers\u00a0&#8220;must not lose sight of the broader implications.&#8221;\u00a0 Not only are constitutional challenges likely, but :<\/p>\n<blockquote><p>&#8220;[W]e must consider the ramifications of such enforcement. The public reaction would likely be negative. Enforcing unauthorized practice of law statutes against online document preparation services would be neither painless nor popular. The lay public, which already detests lawyers, generally perceives unauthorized practice of law enforcement as yet another way for the legal profession to line its collective pockets at the expense of consumers. . . .<\/p>\n<p>&#8220;In addition, it is at least possible that these websites are managing to provide some consumers with a necessary service\u2014basic legal documents at an affordable price. At a time when the bar seems to have abdicated its responsibility to provide routine, noncomplex legal services to the poor and middle class, it could well be counterproductive to try to shut down one vehicle for serving those unmet needs.&#8221;<\/p><\/blockquote>\n<p>The <em>Chavis<\/em> opinion basically denies the benefits of digital technology to any consumer who needs assistance using the software or website.\u00a0 (Note: the Court goes through the motions of looking at other factors, but then concludes that Chavis engaged in UPL because he played more than the role of a mere scrivener.) \u00a0In fact, <em>Chavis<\/em> would appear to apply equally to printed self-help books or forms.\u00a0 So, forget about helping your old auntie or parent, the grumpy old man nextdoor, or your non-techie spouse or sibling &#8212; and don&#8217;t even think about volunteering down at the Senior Center.\u00a0\u00a0 It&#8217;s an outcome that could easily lead the public to conclude, as Prof. Lanctot says, that UPL is\u00a0&#8220;yet another way for the legal profession to line its collective pockets at the expense of consumers&#8221;<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" height=\"15\" alt=\"tinyRedCheck\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2006\/12\/tinyredcheck.gif\" width=\"18\" \/>\u00a0 For more background on the long battle between UPL and self-help materials, and on efforts to define the practice of law in a consumer-friendly way, see:<\/p>\n<ul>\n<li>&#8220;<a href=\"http:\/\/www.nolo.com\/pr_date.cfm\/ObjectID\/1A8281D7-40DA-45B8-ADF0E37CC58533B0\/returnTo\/PRbyCat\">Nolo v. Texas<\/a> &#8212; Self-Help Law and First Amendment Rights Protected&#8221; (Oct. 1, 1999). This press release contains a brief summary of the battle between Nolo.com and the Texas bar \u2014 when Texas lawyers tried unsuccesfully a decade ago to ban Nolo\u2019s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. <font face=\"Arial\" size=\"2\">[See <\/font><a href=\"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/01\/25\/filling-in-a-quicken-will-for-a-nonagenarian-is-upl-in-sc\/#comment-583\"><font face=\"Arial\" size=\"2\">Comment 2<\/font><\/a><font face=\"Arial\" size=\"2\">, below,\u00a0for more details about <em>Nolo v. Texas<\/em>, as well as the battle over the ground-breaking bestseller <\/font><a href=\"http:\/\/www.amazon.com\/How-Avoid-Probate-Norman-Dacey\/dp\/0020081812\"><em><font face=\"Arial\" size=\"2\">How to Avoid Probate!,<\/font><\/em><\/a><font face=\"Arial\" size=\"2\"> by Norman Dacey.] <\/font><\/li>\n<li><a href=\"http:\/\/www.halt.org\/reform_projects\/freedom_of_legal_information\/unauthorized_practice_of_law\/\">HALT&#8217;s UPL Project<\/a> (where the legal reform group\u00a0explains why the &#8220;unauthorized practice of law&#8221; should be limited to saying you are a lawyer when you are not.)<\/li>\n<li>The approach of the Federal Trade Commission and Department of Justice to defining the practic of law &#8212; <a href=\"http:\/\/www.usdoj.gov\/atr\/public\/comments\/200604.htm\">Remarks to the ABA<\/a> (2002)<\/li>\n<li>The postings and materials that are linked to <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/unauthorized-practice-of-law\/\">f\/k\/a&#8217;s Unauthorized Practice page<\/a>.<\/li>\n<\/ul>\n<p>\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"<p>\u00a0 In July 2004, South Carolina insurance agent Ernest B. Chavis made a social visit to his former neighbor Annie Belle Weiss, who was then 91-years old.\u00a0 Because she trusted him to be &#8220;objective&#8221; (having also had\u00a0business\u00a0dealings with him), Ms. Weiss\u00a0asked \u201cCan you help me make a will?\u201d\u00a0\u00a0Chavis agreed to help\u00a0her with a simple will [&hellip;]<\/p>\n","protected":false},"author":437,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[991,900],"tags":[],"class_list":["post-492","post","type-post","status-publish","format-standard","hentry","category-news-items","category-viewpoint"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/492","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/users\/437"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/comments?post=492"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/492\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/media?parent=492"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/categories?post=492"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/tags?post=492"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}