[00:00.000 --> 00:09.000] All right, everybody, I'd like to introduce you to Sarah Dain Whitfield. [00:09.000 --> 00:11.320] Hi, everyone. [00:11.320 --> 00:13.880] As you know now, my name is Sarah Dain Whitfield. [00:13.880 --> 00:17.360] I'm an open source advisor at Google. [00:17.360 --> 00:22.320] This is my very first FOSDEM, very first in person speaking engagement, so please bear [00:22.320 --> 00:23.320] with me through the nerves. [00:23.320 --> 00:24.320] I'm the jetlight. [00:24.320 --> 00:25.320] Thank you. [00:25.320 --> 00:30.760] Thank you. [00:30.760 --> 00:33.960] Everyone I've met so far has been so nice, so gracious, so understanding. [00:33.960 --> 00:36.920] I really, really appreciate it. [00:36.920 --> 00:43.240] And I'll also say that while I'm going to nerd out quite a bit on this topic that I [00:43.240 --> 00:49.600] find super interesting, if you came here for answers about what exactly is the unauthorized [00:49.600 --> 00:54.280] practice of law, I regret to inform you that you will not be leaving with answers. [00:54.280 --> 00:58.880] You will be leaving with lots and lots of questions, and I hope that that will spur [00:58.880 --> 01:05.040] some discussion, and we can think through some of the very fuzzy lines that determine [01:05.040 --> 01:08.640] what is or isn't the practice of law. [01:08.640 --> 01:10.560] Let's see. [01:10.560 --> 01:12.560] Hopefully this works. [01:12.560 --> 01:18.840] All right, so in light of the subject matter that I'm covering today, I wanted to just [01:18.840 --> 01:21.800] clarify that this is not legal advice. [01:21.800 --> 01:24.400] I am not your employer. [01:24.400 --> 01:28.360] This is for general informational purposes only. [01:28.360 --> 01:31.600] Likewise, I have a few housekeeping notes. [01:31.600 --> 01:39.000] So typical American, I know, mostly going to be focusing, well, exclusively going to be [01:39.000 --> 01:45.760] focusing on U.S. law today, mostly because that's where most of the action is with regard [01:45.760 --> 01:47.400] to software at this time. [01:47.400 --> 01:52.320] It's also what I'm most familiar with when it comes to unauthorized practice of law. [01:52.320 --> 01:58.240] I absolutely acknowledge that basically every other jurisdiction around the world regulates [01:58.240 --> 02:05.160] the practice of law, and based on the research that I did before this talk, it appears that [02:05.160 --> 02:11.040] most other countries really distinguish and emphasize regulating the practice in a courtroom [02:11.040 --> 02:16.800] setting where you're actually representing a client in front of a judge way more than [02:16.800 --> 02:23.680] out of law practice, and it's less distinguished in the U.S. [02:23.680 --> 02:30.720] Finally, I wanted to let you all know in the interest of time, and everything that I want [02:30.720 --> 02:37.760] to cover, I'm going to be giving you high-level summaries of various rules and three cases [02:37.760 --> 02:43.800] that I'll cover, and as I mentioned before, I'm going to leave you with some open-ended [02:43.800 --> 02:48.200] questions to consider. [02:48.200 --> 02:54.760] To get started, by show of hands, is anyone familiar with a company called Do Not Pay? [02:54.760 --> 02:58.400] Okay, just a few of you. [02:58.400 --> 03:04.520] So Do Not Pay is a U.S.-based company that was launched in 2015, initially providing [03:04.520 --> 03:12.040] a chatbot service that would help users fight traffic tickets. [03:12.040 --> 03:17.360] They expanded their services to deal with other consumer disputes, like if your flight [03:17.360 --> 03:23.920] was canceled and you were eligible for a refund, the chatbot would help you through that process. [03:23.920 --> 03:28.160] If you wanted to cancel your free trial before you got charged, it would help you through [03:28.160 --> 03:30.160] that process. [03:30.160 --> 03:35.040] In 2018, they relaunched their app to integrate AI. [03:35.040 --> 03:41.800] I believe that they say that they're relying on IBM Watson, and they dubbed it the world's [03:41.800 --> 03:49.520] first robot lawyer, and they included various legal actions and legal document generation [03:49.520 --> 03:51.960] as part of their services. [03:51.960 --> 04:00.000] So if any of you are maybe in the future interested in getting involved more in the legal tech [04:00.000 --> 04:04.440] Twitter space, you'll see things pop up like this all the time. [04:04.440 --> 04:09.560] So in the past month, that's happened after I had submitted this talk, so this worked [04:09.560 --> 04:17.760] out well for me, Do Not Pay announced in early January that their AI was going to actually [04:17.760 --> 04:27.280] represent someone live in court, in traffic court, to dispute a $200 traffic ticket. [04:27.280 --> 04:34.360] A few days later, they offered a million dollars to anyone who is willing to leverage [04:34.360 --> 04:40.760] their AI exclusively in arguing case in front of the Supreme Court. [04:40.760 --> 04:45.760] About a week later, it announced some additional legal products that it was releasing, where [04:45.760 --> 04:55.800] it would summarize terms of service and lease agreement terms highlighting the terms that [04:55.800 --> 05:01.080] were not standard, so that the consumer had a better understanding and more insight into [05:01.080 --> 05:08.160] what they were agreeing to, and whether it was standard or not market, if they were being [05:08.160 --> 05:11.080] taken advantage of. [05:11.080 --> 05:21.520] And they then confirmed that their case in the traffic court was actually supposed to [05:21.520 --> 05:23.960] take place on February 22. [05:23.960 --> 05:26.000] Everything was good to go. [05:26.000 --> 05:31.400] Three days after that announcement, they regretted to inform all of their followers that they [05:31.400 --> 05:36.560] were indefinitely postponing going live in any courtroom, and they were also going to [05:36.560 --> 05:42.480] roll back any of the legal services that their website offered. [05:42.480 --> 05:44.520] So what happened exactly? [05:44.520 --> 05:46.880] Lawyers, lawyers happened. [05:46.880 --> 05:53.040] Lawyers in the regulatory bodies in the US, the state bar associations said, ah, no, I [05:53.720 --> 05:56.320] think that's our job. [05:56.320 --> 06:04.880] This looks and smells a lot like the unauthorized practice of law, and along those lines, penalties [06:04.880 --> 06:12.080] across the board can include civil penalties, fines, it could also include jail time being [06:12.080 --> 06:16.760] incarcerated for the unauthorized practice of law. [06:16.760 --> 06:23.640] So Do Not Pay was not interested in pursuing that and waiting to see what might happen. [06:23.640 --> 06:30.480] And the founder said he was surprised he had underestimated how seriously lawyers in the [06:30.480 --> 06:35.200] US would take a $200 speeding ticket. [06:35.200 --> 06:40.800] So again, I said that you're likely going to leave with more questions and answers today. [06:40.880 --> 06:47.240] I would love to give you a clear definition for what the practice of law actually is, but [06:47.240 --> 06:50.640] unfortunately there's not one unifying definition. [06:50.640 --> 06:55.840] Each state regulates the practice of law, so each state has their own definition for [06:55.840 --> 07:02.160] what the practice of law is, and they very much like keeping it vague instead of enumerating [07:02.160 --> 07:09.160] every possible action or type of speech that may constitute the practice of law, which [07:09.240 --> 07:14.520] means that you kind of have to wait and see what happens in court or take a very conservative [07:14.520 --> 07:18.720] approach and just leave it to the lawyers. [07:18.720 --> 07:23.800] So along those lines, I've already mentioned that there are lots of different penalties [07:23.800 --> 07:29.680] that anyone may face, but I also want to emphasize that this doesn't just apply to lawyers, this [07:29.680 --> 07:32.560] covers non-lawyers as well. [07:32.560 --> 07:39.560] So if anyone is familiar with the US TV show Suits, which is what made Meghan Markle quite [07:40.800 --> 07:47.080] famous at least in the States, the main character is the quintessential case of the unauthorized [07:47.080 --> 07:51.680] practice of law. Someone that did not have a law license, didn't go to law school, and [07:51.680 --> 07:56.560] he pretended to be a lawyer. Surprise, surprise, he was brilliant, he does a great job, but [07:56.560 --> 08:00.320] there's always this looming specter that someone's going to find out and he's going to be in [08:00.320 --> 08:03.640] a lot of trouble for the unauthorized practice of law. [08:03.640 --> 08:10.640] So that's the typical case, but it also applies to lawyers. So just wanted to clarify that. [08:11.160 --> 08:18.160] Now, I tried to distill the common elements. I read tons of cases, tons of articles and [08:20.960 --> 08:27.960] law journal notes and articles about this topic, and I was able to divide the most common [08:28.960 --> 08:36.200] elements of unauthorized practice of law, or UPL, into these two main buckets. And they're [08:36.200 --> 08:41.440] going to look nearly identical, but I'll talk through some of the distinctions in a moment. [08:41.440 --> 08:48.440] So the first bucket deals with legal advice that's given by a person or entity that does [08:48.960 --> 08:55.960] not have a law license in the relevant jurisdiction. Sounds like a bunch of nonsense and legalies. [08:56.120 --> 09:03.120] The second bucket is legal services for compensation given by a person or entity that does not have [09:04.360 --> 09:10.120] a law license in the relevant jurisdiction. So the clearest delineation that anyone could [09:10.120 --> 09:16.480] draw just by looking at the two of these is the first two bullet points. In particular, [09:16.480 --> 09:23.480] the legal services tends to specify that it's for compensation, whereas legal advice does [09:23.480 --> 09:30.480] not. So does that mean that if I provide legal services for free that I'm not liable for [09:33.200 --> 09:39.240] unauthorized practice of law? Unfortunately not, because some states will then deem or [09:39.240 --> 09:45.600] may deem your provision of legal services as also providing legal advice. And they don't [09:45.600 --> 09:50.680] distinguish in most cases giving legal advice. You can give that away for free and still [09:50.680 --> 09:57.240] be held liable. So isn't great. There are also a bunch of other nuanced distinctions [09:57.240 --> 10:04.240] that hopefully you'll start to see come through as I discuss the cases. In how courts look [10:04.240 --> 10:11.240] at and distinguish, are we okay? Between what is legal advice and what legal services are. [10:11.760 --> 10:18.760] So since I can't give you a definition for the practice of law, and we couldn't really [10:24.040 --> 10:31.040] back into it from looking at what constitutes the unauthorized practice of law, let's talk [10:31.040 --> 10:38.040] about the public policy rationale for why this exists at all. This quote is from a 1952 [10:38.600 --> 10:45.600] Missouri Supreme Court case, and despite its age I think it sums up the gist of the public [10:45.600 --> 10:50.640] policy rationale pretty well. At the end of the day it comes down to consumer protection. [10:50.640 --> 10:56.480] This theoretically is not supposed to be about protecting lawyers and their livelihoods, [10:56.480 --> 11:02.440] creating a monopoly over who can give legal advice and provide legal services. What is [11:02.440 --> 11:08.680] really supposed to do is protect the public and make sure that if they're getting advice, [11:08.680 --> 11:14.880] if they're relying on someone else, that it's actually reliable, that it's competent advice, [11:14.880 --> 11:21.880] and that maybe there's some repercussions if that doesn't hold water. So in light of [11:24.920 --> 11:31.760] that great public policy theory, what does that actually look like in practice? The options [11:31.880 --> 11:38.640] for legal representation in the US come down to, well you can do it yourself, all alone, [11:38.640 --> 11:44.240] do your own research, fill out your own forms, draft your own documents, file your own things, [11:44.240 --> 11:49.880] that's what we call pro se representation, or you can hire a lawyer which tends to be [11:49.880 --> 11:54.520] expensive and if you don't already have a connection through family or friends to a [11:54.520 --> 12:01.120] lawyer, it can be really hard to track down the right person. And additionally your claim [12:01.160 --> 12:08.160] may not be worth their time since they charge by the hour. And finally, in very limited [12:08.520 --> 12:15.360] circumstances, mostly confined to criminal cases, a court may actually appoint a lawyer [12:15.360 --> 12:21.760] to you, but that's not really a viable option for the vast majority of especially civil [12:21.760 --> 12:28.760] cases that deal with consumer protection. So how's that public policy rationale looking [12:29.760 --> 12:36.760] in practice? Clearly there's a bit of a disconnect. Additionally, the US is currently suffering [12:38.080 --> 12:45.080] from what many call a crisis in terms of access to justice, access to efficient, affordable, [12:48.360 --> 12:55.360] reasonable expectation of justice and the ability to interact with the justice system. [12:56.360 --> 13:03.360] And based on this quote and all of the other relevant demographics and statistics about [13:03.400 --> 13:10.400] this issue, it largely impacts low and middle income individuals who can't afford legal [13:12.320 --> 13:19.320] services. So to get back to the unauthorized practice of law, again, I wanted to try and [13:19.960 --> 13:26.960] find a way to describe the various ways that a court may consider, since we don't have [13:29.480 --> 13:36.480] clear definitions, what may bump over into the category, what may cross that fuzzy line [13:36.680 --> 13:43.680] into the unauthorized practice. And so these are various high level categories of what [13:44.280 --> 13:50.880] may tip the scales. But again, to clarify, there's no clear set framework that anyone [13:50.880 --> 13:57.880] is following. There's no set determination that, oh, well, if they disclaimed that they're [13:58.200 --> 14:04.640] not a lawyer and it's not legal advice like I did earlier, then it's clearly outside the [14:04.640 --> 14:10.760] realm and can't be held liable. There's no clear line drawn. If I am giving you legal [14:10.800 --> 14:17.800] advice for free, again, as I said, it very well may not be exempt from liability. So [14:20.240 --> 14:24.800] you'll see some of those factors come up again in these cases. In the interest of time, again, [14:24.800 --> 14:29.840] I want to kick start the first case. So this is Janssen versus LegalZoom. Quite some time [14:29.840 --> 14:36.840] ago, 2011, this was a case that took place in Missouri. And LegalZoom, for anyone who's [14:37.840 --> 14:44.840] not familiar, is a website that offers legal services throughout the United States. When [14:49.120 --> 14:56.120] they initially started, it was just their basic legal forms that someone could buy, print [14:57.520 --> 15:03.520] out, and fill in themselves and do whatever they wanted with. That's what the court considered [15:03.520 --> 15:10.520] to be the goods that LegalZoom offered. They expanded into building out a program, essentially [15:10.520 --> 15:17.520] as decision trees where they provided questionnaires to their customers and then would generate [15:18.040 --> 15:24.040] legal documents based on the user input. That's what the court, in this case, deemed the services [15:24.040 --> 15:31.040] that were provided for sale. Sorry, lost my place. So LegalZoom did mention that legal [15:33.560 --> 15:38.560] services make a lot of statements that they were not a law firm. They were not providing [15:38.560 --> 15:45.560] legal advice. This was meant to be self-help services. And no actual harm was cited in [15:48.200 --> 15:55.200] the case as being done to the public or to the actual customers of LegalZoom. Despite [15:56.200 --> 16:02.800] all of this, the court still found that the services constituted unauthorized practice [16:02.880 --> 16:09.880] of law. So in particular, I wanted to call this to your attention, the court specifically [16:10.720 --> 16:17.720] honed in on the fact that a human had programmed the software to generate the legal documents. [16:21.440 --> 16:28.440] And since the human that programmed it was not a Missouri licensed attorney, but they [16:29.440 --> 16:35.000] had to have relied on Missouri law in order to generate documents that would affect a [16:35.000 --> 16:41.280] Missouri resident, that they clearly must have been making legal determinations. Just [16:41.280 --> 16:47.720] like a Missouri licensed attorney would do a client intake and ask a series of questions [16:47.720 --> 16:52.000] of the client and then use that to inform what documents they would choose and what [16:52.040 --> 16:58.560] content made it into those documents. So the first open-ended question that I want you [16:58.560 --> 17:05.560] all to consider is this was decided just over 10 years ago now. How might the court have [17:07.160 --> 17:14.160] viewed this human programmer input if this were an AI model instead? And based on where [17:14.280 --> 17:19.280] technology has come and where the lay person understanding of what technology is capable [17:23.280 --> 17:30.280] of doing, how might that affect how courts look at this? So let's fast forward 10 years [17:30.280 --> 17:37.280] to 2021. This is a Miami based startup called TIPT. They were sued by the Florida Bar Association [17:38.280 --> 17:45.280] for allegedly violating the unauthorized practice of law regulations. TIPT had developed [17:45.640 --> 17:52.640] an app that would connect anyone who had gotten a traffic ticket with a licensed Florida attorney [17:54.480 --> 18:01.480] to resolve the case and they did it for an upfront flat fee based on a percentage of [18:01.480 --> 18:07.640] the total violation fee on the face value of that ticket. It built an algorithm, this [18:07.640 --> 18:14.240] is the main business model, they built an algorithm that used court data on the likelihood [18:14.240 --> 18:21.240] of a ticket being dismissed in court or being charged fees or accruing points in excess [18:22.160 --> 18:27.600] of the face value of the ticket to come up with what was actually going to be profitable, [18:27.600 --> 18:33.240] kind of like an insurance company will calculate the risk that you as a young healthy person [18:33.240 --> 18:38.680] are going to suffer some catastrophic loss and they're going to have to pay big. It's [18:38.680 --> 18:43.520] probably a low likelihood so they charge you at least in the United States, forgive the [18:43.520 --> 18:49.760] example. In the US we get charged a lot of money to pay for our health insurance and [18:49.760 --> 18:55.760] usually don't see a return on that unless something really bad happens and that's a [18:55.760 --> 19:02.760] story for another time. So to get back to the ticked case, they made it very, very clear [19:03.680 --> 19:10.680] in all of their website communications in their terms of service, everywhere on their [19:12.440 --> 19:19.200] site that they were not providing legal services, they were going to connect you with a licensed [19:19.200 --> 19:25.760] attorney who would take over and handle the case for you and their sole responsibility [19:25.760 --> 19:32.120] would be determining whether or not your case was a good fit, referring to a licensed attorney [19:32.120 --> 19:36.080] and then negotiating that flat fee on your behalf with the attorney and they would take [19:36.080 --> 19:41.920] care of all the payments. Once the connection was made between the customer and the attorney, [19:41.920 --> 19:46.280] ticked removed itself from that relationship other than providing the financing to pay [19:46.320 --> 19:52.080] the attorney and any related costs. Likewise, the lawyers were not employees. I'm running [19:52.080 --> 19:59.080] out of time. So to skip ahead, no harm was done. There were two groups that filed amicus [20:00.400 --> 20:07.400] briefs, one in support of the Florida Bar, one in support of ticked and surprise, surprise [20:07.400 --> 20:11.680] they were at odds. One was a group of private practice attorneys in competition with ticked. [20:11.680 --> 20:18.680] The other was a group of consumer rights activists and legal aid services. So back to that public [20:19.720 --> 20:26.400] policy rationale. In a 4-3 decision in the Florida Supreme Court, they found that ticked [20:26.400 --> 20:32.320] was engaged in the unauthorized practice of law and cited a number of potential harms [20:32.320 --> 20:39.320] that may befall their customers, but no actual harm. But this was enough justification. The [20:39.880 --> 20:46.880] majority had even said that they lauded the idea that technology was lowering the barrier [20:47.680 --> 20:54.680] of entry to getting legal services to having public benefit and public convenience, but [20:56.800 --> 21:03.320] that still was not enough to knock out the unauthorized practice of law claims. The minority [21:03.320 --> 21:07.480] dissent, I'm not going to have time to cover it in full, but it's great if you have a chance [21:07.520 --> 21:12.600] to read it. I have citations in my slides. Essentially they say, hey, this is a hedge. [21:12.600 --> 21:18.520] This is purely financial. It has nothing to do with law. And all you're getting is certainty [21:18.520 --> 21:23.080] of this is the flat fee that I pay and that's all that I'm going to pay. And it has nothing [21:23.080 --> 21:28.480] to do with legal lawyers handle all of the legal stuff. So this should not have been [21:28.480 --> 21:34.200] considered unauthorized practice of law. In Ray Peterson, involved, I'm going to skip [21:34.240 --> 21:41.240] through this, forgive me, the non-profit called Upsolve. Upsolve provides free legal services [21:43.480 --> 21:50.480] to low income individuals to file for personal bankruptcy in the U.S. Again, no harm done, [21:51.480 --> 21:58.480] no fees charged. Upsolve was still found to be engaged in the unauthorized practice [21:59.480 --> 22:05.520] of law, despite plenty of disclaimers relying on government issued forms and instruction [22:05.520 --> 22:09.840] sheets and publicly available information, making sure that they were only serving clients [22:09.840 --> 22:16.840] that had very basic cases that didn't require additional legal advice or input, had a lot [22:17.720 --> 22:24.720] of controls in place, but unfortunately it was not enough. Fortunately, in the unlike [22:25.200 --> 22:32.200] ticked, Upsolve was able to work with the bankruptcy court to make changes. They're [22:32.920 --> 22:37.920] currently working with the bankruptcy court to make changes to their program so that they [22:37.920 --> 22:43.080] can continue their services, whereas ticked actually had to shut down. They are no longer [22:43.080 --> 22:50.080] active and able to conduct business in the state of Florida. So this is a handy chart. [22:50.360 --> 22:55.440] Again, forgive me for the time. We won't be able to get to everything, but I did want [22:55.440 --> 23:00.480] to note here in the three cases that I talked about, Upsolve is the only one that did not [23:00.480 --> 23:06.480] charge for their services, and yet they were still found to be in violation of unauthorized [23:06.480 --> 23:12.840] practice of law. In the legal Zoom case, I didn't cover this, but they were providing [23:12.840 --> 23:19.840] some direct filings on behalf of their customers, which in the case law is considered inquisitive. [23:20.080 --> 23:26.040] The court, which usually is a higher threshold, everywhere else was out of court. There was [23:26.040 --> 23:33.040] no interaction with judges. There was no in-person representation. Finally, I wanted to distinguish [23:33.680 --> 23:39.360] the decisions. All three were unauthorized practice of law. Legal Zoom is still operating [23:39.360 --> 23:44.760] in Missouri. They settled the class action lawsuit, and they worked out a deal with the [23:44.760 --> 23:51.360] state in order to change some of their services and disclaimers and get around any future [23:51.360 --> 23:57.320] claims of unauthorized practice of law. Same in Upsolve, at least for now, but TICT did [23:57.320 --> 24:04.320] have to discontinue their services. One thing that I left out is that Upsolve, I found out [24:06.200 --> 24:12.480] this morning, which is why it's at the very end, Upsolve has released publicly some of [24:12.520 --> 24:19.360] their software on their GitHub org. I don't know. It wasn't cited in the case. It is free [24:19.360 --> 24:24.440] and available under open source licenses. I don't know if this was the software that [24:24.440 --> 24:31.440] was involved or at issue in the case. It wasn't specified, but interesting to note that open [24:32.000 --> 24:37.120] source software is involved. The reason that I'm bringing this up at the very end, I know [24:37.120 --> 24:42.720] I'm at time, is these are some additional open questions. In light of the various facts [24:42.720 --> 24:48.160] and elements that a court will consider in terms of what is the unauthorized practice [24:48.160 --> 24:55.160] of law, where at FOSDEM, I wanted to address what effects this may have on FOSD projects. [24:56.160 --> 25:03.160] Everyone knows I'm not a lawyer, but I'm going to give you my opinion about something. Licenses [25:03.280 --> 25:10.120] contain warranties and disclaimers, et cetera. I don't have time to cover all of this. Forgive [25:10.120 --> 25:15.720] me again. You've been a great audience. I really appreciate your patience with me. Please [25:15.720 --> 25:20.720] check out the slides that are already uploaded. This is CC by Ford.