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A resolution adopting model rules for companies that offer legal documents online was withdrawn from the ABA House of Delegates after calls for clarification.
Model rules don’t always generate much debate, but Resolution 10A, sponsored by the New York State Bar Association, concerned companies that offer a substitute for retaining an attorney. Before an audience of attorneys, that was a sensitive topic.
“There were concerns with the guidelines we proposed,” says Michael Miller, president of the NYSBA. He notes that the executive committees of the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution all felt there was need for clarify the proposed guidelines before going forward.
A prior iteration of the proposal, which called for regulation as well as offering model rules, was withdrawn at 2018’s annual meeting. Resolution 10A offered the model rules as a “best practice” guideline for legal document providers.
During this year’s debate, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether or not the proposed guidelines would apply to courts offering online forms.
“We agreed to withdraw it provided all these stakeholders would make a working group with us to work collaboratively on a short timeline so we could move forward with refined guidelines,” says Miller.
Charles Garcia, chair of the Standing Committee on the Delivery of Legal Services, will help steer the committee editing the guidelines for presentation at the ABA Annual Meeting in August, which will be held in San Francisco.
“The Delivery Committee is committed to working with the NYSBA and other stakeholders in an effort to bring back a unified Resolution to the House in San Francisco,” Garcia wrote in an email to the Journal.
The online legal services market is large and growing, according to a NYSBA report, and provides access to legal services to people and small businesses of modest means.
“Online legal forms provide enhanced access to justice for people of modest means; however the impact on consumer protection of the online sales of these forms has received only modest attention,” reads the 2017 report.
Miller says that offering guidance to online legal document providers can help protect consumers. Some providers offer contracts that are not favorable to consumers, the report noted, with arbitration provisions, class action waivers and no privacy protections for users’ sensitive data.
The resolution builds on two prior ABA resolutions: 2016’s Resolution 114, which urged providers to include clear and conspicuous information on finding a lawyer, and 2003’s Resolution 103, which offered an earlier set of best practices.
There’s a tight timeline between now and the ABA Annual Meeting in August, but with clear goals and a broad team of stakeholders, Miller believes this resolution will be brought back to the floor for further consideration.
“I’m optimistic we’ll be able to do that,” he says.