By: Diana Alcala, J.D. Candidate, May 2019, St. Thomas University School of Law.

Picture this: two people meet, marry and live together happily for many years. Each person has appointed their spouse sole beneficiary and health care surrogate in the case that tragedy should strike.  Then, due to some irreconcilable differences, the two separate. Divorce is on the horizon, and in anticipation of this they decide to revoke the documents in effect and replace them with versions reflecting their new wishes. Unfortunately, money is tight, and they find themselves unable to afford any attorney at his or her hourly rate. Their solution? Turn to the internet.

That may be the case more and more often with the popularization of e-commerce. Websites such as LegalZoom and ItsOverEasy offer to complete advanced directives, wills and even divorces within just a few clicks of a button. Plus, all of it can be done without having to leave home to consult with an attorney. Often, of course, these transactions will often be accompanied with the later inconvenience of having to obtain legal counsel to resolve any issues that arise.

That is, if the person who originally sought the online services is able to resolve those issues. If something with a healthcare directive goes awry, the intended principal of the document may find themselves in a persistent vegetative state or determined incapacitated by a judge. Worse yet, with a will the testator may be dead long before defects that make the document invalid are revealed.

The American Bar Association does much to hold licensed attorneys accountable for exercising reasonable care and diligence. Rule 5.5 of the Model Rules of Professional Conduct outlines the various instances for which an attorney practicing law in a jurisdiction he or she is not licensed may be subject to discipline. But what is there to be done when those individuals engaging in the unauthorized practice of law are nonlawyers?

Chapter 454 of the Florida Statutes sets forth the regulation of the legal profession. Within this chapter, the unauthorized practice of law is classified as a third-degree felony. Sections 454.31 and 454.32 outline only the disciplinary procedures for suspended attorneys who decide to practice, and the other attorneys who assist them. Section 454.23 covers nonlawyers who engage in the practice of law in Florida, or who represent themselves as qualified to do so. Even with such carefully drafted laws in place, it may be difficult to discipline licensed attorneys promising to handle matters in one fell swoop, and without further consultation. Websites such as LegalZoom might quite possibly find themselves immune.

It is debatable whether they hold themselves out as authorized to practice law in any one particular state. Perhaps the brief questionnaire where the prospective client selects the state for which the documents are to be drafted is enough. After all, where the applicable laws for documents such as wills are not uniform nationwide, drastic differences may result from one jurisdiction to another. Or perhaps the responsibility lies with the “network of attorneys” who facilitate these online transactions despite their professional duty to refrain from making nonlawyers their practicing partners.