Does LegalZoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have successfully defended against such claims by asserting that the law-related activities they wanted to pursue were protected by the First Amendment. The article first sketches some potential problems with the reflexive assumption that LegalZoom and its fellow travelers are engaged in the unauthorized practice of law. Even assuming that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees. In particular, to the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article sets forth some of the possible First Amendment arguments available to document preparers, without extensive elaboration, to call attention to the possibility that they may be raised in defense to an unauthorized practice prosecution. It concludes with a caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom

The Plain Meaning of Oncale

The unanimous Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc. caught many observers by surprise. Even more surprising than the Court\u27s unanimity on the divisive issue of same-sex harassment, however, was the author of the opinion-the deeply conservative Justice Antonin Scalia. Many commentators suggest that the opinion\u27s requirement that plaintiffs prove that the harassment was because of sex will hamper lawsuits arising from single-sex work environments. Attempts to fit the decision within traditional Title VII jurisprudence inevitably will be clouded by conjecture about Scalia\u27s true intent. Indeed, after one year of experience with Oncale, the judicial record is decidedly mixed The debate over Oncale\u27s meaning has manifested itself most clearly in an emerging dispute over the role of summary judgment in resolving harassment cases. Nevertheless, in attempting to apply a new Supreme Court opinion, particularly one joined by all nine Justices, it is the holding of the opinion that must guide the lower courts, not the assorted examples, exhortations, and suggestions that accompany it. The way to make sense of Oncale is to take it at face value, as a victory for a plaintiff who alleged particularly egregious harassment

Attorney-Client Relationships in Cyberspace: The Peril and the Promise

Despite the legal profession\u27s historical resistance to technological advances, the burgeoning world of cyberspace is bringing change to the practice of law. As laypeople flock to the Internet to seek help with their legal problems, lawyers are going online to provide such assistance. Yet, these exchanges are occurring without close consideration of whether they create attorney-client relationships-the source of weighty ethical and legal obligations. In many cases, lawyers seek to avoid the consequences of such relationships merely by disclaiming their existence. In this Article, Professor Lanctot examines the issue of lawyer-layperson communications in cyberspace from doctrinal and historical perspectives. The Article\u27s analysis of the case law demonstrates that online exchanges resulting in the giving of specific legal advice likely will be viewed as creating attorney-client relationships. Moreover, disclaimers are unlikely to provide the protection that many lawyers seek. The Article then reviews the history of bar regulation of advice-giving in a variety of contexts, from the Good Will Court radio broadcasts of the 1930s to today\u27s seminars and 900-number services. The Article shows that the bar consistently has both viewed the furnishing of particularized legal advice as creating an attorney-client relationship and frowned on such advice-giving in nontraditional contexts. The bar\u27s cool response to forms of legal assistance spurred by new technology sounds a cautionary note for lawyers on the Internet. Yet, if attorney-client relationships in cyberspace present some peril, through the specter of legal liability or of bar disciplinary action, they also present enormous promise for addressing the unmet legal needs of many Americans with lower incomes. Professor Lanctot concludes the Article by discussing the challenge of adapting the traditional, full-service model of attorney-client relationships to the question-and-answer format of cyberspace. One means of doing so, known as discrete task representation, may allow lawyers to avoid the legal and ethical pitfalls of online practice yet provide valuable legal assistance to those who cannot afford traditional representation

Opening Remarks

Despite the significant demographic change in the gender composition of law faculty during the last 25 years, persistent questions of unequal treatment and unconscious bias continue to hamper the ability of female faculty to achieve full equality in law schools. The symposium will examine a broad variety of issues relating to gender equity in law schools, such as: Teaching issues — whether excellent teaching is valued in law schools, whether women faculty have a disproportionate teaching load, whether women are disproportionately present/absent in particular substantive courses, whether women are evaluated differently by students Scholarly issues — whether areas of particular interest to women are undervalued, whether the work of women is given equal weight by law reviews, and whether female faculty bring a different voice to legal scholarship Service issues — whether non-scholarly tasks performed by female faculty disproportionately disadvantage them with respect to status and compensation The gender disparity in legal writing and in clinical education, which also produces substantial pay disparities that fall disproportionately on women in legal education Intersections with issues of race, class, gender, and sexual identity The symposium will also examine recent pay discrimination litigation at Denver Law School and focus on best practices for law schools that want to avoid similar litigation in the future