Janson et al v. LegalZoom.com, Inc.

Filing 91

SUGGESTIONS in support re 90 MOTION for summary judgment filed by Robert M. Thompson on behalf of Defendant LegalZoom.com, Inc.. (Attachments: # 1 Index Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H-1, # 10 Exhibit H-2, # 11 Exhibit I)(Related document(s) 90 ) (Thompson, Robert) Modified on 4/11/2011 to reflect receipt of Exhibits 2 & 3 to H in the JC Clerk's office(Bax, Laura). Modified on 4/26/2011 - Document deleted - duplicate of 101 filed under seal. (Kanies, Renea).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

TODD JANSON, GERALD T. ARDREY, CHAD M.
FERRELL, and C & J REMODELING LLC, on behalf of
themselves and on behalf of all others similarly situated,
Plaintiffs,
Case No. 2:10-cv-04018-NKL
v.
LEGALZOOM.COM, INC.,
Defendant.

SUGGESTIONS IN SUPPORT OF DEFENDANT
LEGALZOOM.COM, INC.’S MOTION FOR SUMMARY JUDGMENT

BRYAN CAVE LLP
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for Defendant LegalZoom.com, Inc.

TABLE OF CONTENTS
Page
STATEMENT OF UNCONTROVERTED MATERIAL FACTS..........................................1
LegalZoom’s Conduct of Business in Missouri During the Class Period ...................1
Description of the Divorce Kit in In re Thompson, Which the Missouri
Supreme Court Held Did Not Constitute the Unauthorized Practice of Law............9
Conclusions of LegalZoom’s Expert Dean Burnele V. Powell...................................11
Other Forms Available in Missouri..............................................................................13
Statements by the Federal Trade Commission ...........................................................14
LEGALZOOM IS ENTITLED TO SUMMARY JUDGMENT ...........................................16
I.

INTRODUCTION..............................................................................................16

II.

LEGALZOOM’S WEBSITE DOES NOT CONSTITUTE THE
UNAUTHORIZED PRACTICE OF LAW UNDER MISSOURI
LAW ....................................................................................................................19
A.
B.

III.

Under In re Thompson, LegalZoom’s Website Is Not the
Unauthorized Practice of Law .............................................................19
LegalZoom’s Website Is Not the Unauthorized Practice of
Law Under Cases Decided After Thompson........................................23

MISSOURI’S UPL STATUTE DOES NOT APPLY TO
LEGALZOOM’S WEBSITE ...........................................................................25
A.

The UPL Statute Does Not Apply to LegalZoom................................25

B.

In Order To Avoid Constitutional Issues, the Court Should
Read the Missouri UPL Statute So As Not To Prohibit
LegalZoom’s Business Practices...........................................................29
1.

2.
C.

If the Court Were to Read the Missouri UPL Statute
to Apply to LegalZoom, the Statute Would Violate
the First Amendment.................................................................30
Other Constitutional Constraints Counsel Against
Applying the UPL Statute to LegalZoom ................................34

At A Minimum, Thompson Trumps Any Interpretation of
the UPL Statute That Would Suggest a Contrary Result ..................36
i

IV.

APPLICATION OF THE MISSOURI UPL STATUTE TO
PATENT AND TRADEMARK APPLICATIONS IS PREEMPTED..........37

V.

BECAUSE PLAINTIFFS’ OTHER CLAIMS DEPEND ON THE
UPL CLAIM, LEGALZOOM SHOULD BE GRANTED
SUMMARY JUDGMENT ON THEM ............................................................40

CONCLUSION ..........................................................................................................................40
CERTIFICATE OF SERVICE ................................................................................................42

ii

TABLE OF AUTHORITIES
Page
Cases
Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005) ..........................39
Carpenter v. Countrywide Home Loans, Inc., 250 S.W.2d 697 (Mo. banc 2008) ......................24
Casey v. FDIC, 583 F.3d 586 (8th Cir. 2009)..............................................................................39
City of Ladue v. Gilleo, 512 U.S. 43 (1994) ................................................................................31
City of Lakewood v. Plain Dealer, 486 U.S. 750 (1988) .............................................................31
City of St. Louis v. Kiely, 652 S.W.2d 694 (Mo. App. E.D. 1983) ..............................................33
Colorado Bar Assoc. v. Miles, 557 P.2d 1202 (Colo. banc 1976) ................................... 19-20, 22
Dacey v. New York County Lawyers’ Ass’n, 423 F.2d 188 (2d Cir. 1969)..................................30
Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. banc 2007) .........................................24, 37
Fadia v. Unauthorized Practice of Law Committee,
830 S.W.2d 162 (Tex. App. 1992)...................................................................................29
Faretta v. California, 422 U.S. 806(1975) ..................................................................................34
Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978)................................................16, 17, 18
ForSaleByOwner.com Corp. v. Zinnemann,
347 F. Supp. 2d 868 (E.D. Cal. 2004)..............................................................................31
Freeman Health System v. Wass, 124 S.W.3d 504 (Mo. App. 2004)..........................................40
Grayned v. City of Rockford, 408 U.S. 104 (1972) .....................................................................35
Greater New Orleans Broadcasting Ass’n, Inc. v. U.S., 527 U.S. 173 (1999)............................31
In re First Escrow, Inc., 840 S.W.2d 839 (Mo. banc 1992) ........................................................24
In re Mid-America Living Trust Assocs., Inc.,
927 S.W.2d 855 (Mo. banc 1996)........................................................................ 23-24, 36
In re Thompson, 547 S.W.2d 365 (Mo. banc 1978) ............................................................ passim

iii

N.Y. County Lawyers’ Ass’n v. Dacey, 283 N.Y.S.2d 984 (N.Y. App. Div. 1967)
(Stevens, J., dissenting), rev’d and dissenting opinion adopted, 234 N.E.2d 459 ...........20
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) .................................................................33
New York County Lawyers Assoc. v. Dacey, 234 N.E.2d 459 (N.Y. 1967).................................19
Oregon State Bar v. Gilchrist, 538 P.2d 913 (Or. 1975) .......................................................19, 22
Osborn v. Bank of U.S., 22 U.S. 738 (1824)................................................................................34
Palmer v. Unauthorized Practice of Law Committee,
438 S.W.2d 374 (Tex. App. 1969)...................................................................................29
People ex rel. Atty’n Gen. v. Bennet, 74 P.2d 671 (Colo. 1937) .................................................20
People v. Landlords Professional Services, 215 Cal. App. 3d 1599,
264 Cal. Rptr. 548 (Cal. 1989).........................................................................................20
Planned Parenthood of Mid-Missouri and Eastern Kansas, Inc. v. Dempsey,
167 F.3d 458 (8th Cir. 1999) ...........................................................................................36
R.A.V. v. St. Paul, 505 U.S. 377 (1992) .......................................................................................32
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ...............................................................34
Rokusek v. Security Title Ins. Co., No. ED 88953 2007 WL 1814294,*3
(Mo. App. 2007), superseded on unrelated grounds by Finnegan v. Old
Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928 (Mo. 2008)..................................40
Simon & Schuster, Inc. v. New York State Crime Victims Bd.,
502 U.S. 105 (1991)................................................................................................... 31-32
Sperry v. Florida, 373 U.S. 379 (1963) ................................................................................. 38-39
State Bar v. Cramer, 249 N.W.2d 1 (Mich. 1976), abrogated on unrelated grounds by
Dressel v. Ameribank, 664 N.W.2d 151 (Mich. 2003) ..............................................20, 22
State ex rel. Schneider v. Hill, 573 P.2d 1078 (Kan. 1978) .........................................................20
Surrick v. Killion, 449 F.3d 520 (3d Cir. 2006)...........................................................................39
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994) ............................................... 32-33
U.S. v. Articles of Drug, 825 F.2d 1238 (8th Cir. 1987)..............................................................35
Unauthorized Practice of Law Committee v. Parsons Tech., Inc. d/b/a Quicken Family
Lawyer, No. Civ.A. 3:97CV-2859H, 1999 WL 47235 (N.D. Tex. Jan. 22,
1999), vacated and remanded, 179 F.3d 956 (5th Cir. 1999).................................... 28-29

iv

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982).........................................................................................................35
Haskell v. Washington Twp., 635 F. Supp. 550, 561 (S.D. Ohio 1986), rev’d on
unrelated grounds by Haskell v. Washington Twp., 864 F.2d 1266 (6th Cir.
1988) ................................................................................................................................35
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...................................................................31
Women’s Medical Center. v. Bell, 248 F.3d 411 (5th Cir. 2001) ................................................35
Rules
37 C.F.R. § 1.31 ...........................................................................................................................38
37 C.F.R § 1.32(a)........................................................................................................................38
37 C.F.R. § 11.6(b) ......................................................................................................................38
37 C.F.R. § 11.6(c).......................................................................................................................38
37 C.F.R. § 11.9(a).......................................................................................................................38
37 C.F.R. § 11.14(b) ....................................................................................................................39
37 C.F.R. § 11.14(c).....................................................................................................................39
37 C.F.R. § 11.14(e).....................................................................................................................39
Statutes
28 U.S.C. § 1654..........................................................................................................................34
35 U.S.C. § 2(b)(2)(D).................................................................................................................38
Ariz. Code of Jud. Admin. § 7-208..............................................................................................32
Cal. Bus. & Prof. Code §§ 6400-6401.6 ......................................................................................32
Mo. Const. art. I, sec. 8 ................................................................................................................19
Mo. Rev. Stat. § 484.010 .............................................................. 17, 22, 24-25, 29-31, 33-34, 36
Mo. Rev. Stat. § 484.010.2 ............................................................................................. 17, 35-36
TEX. GOV’T CODE ANN. § 81.101(c) (2005) ..........................................................................29, 32

v

Other Authorities
American Bar Association Consortium on Legal Services and the Public,
Legal Needs and Civil Justice, A Survey of Americans, Major Findings from the
Comprehensive Legal Needs Study (1994) ......................................................................17
Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really
Make Good Neighbors—or Even Good Sense?,
1980 Am. B. Found. Res. J. 159 (1980) ..........................................................................16
Norman Dacey, How to Avoid Probate .......................................................................................30
Oregon Formal Ethics Opinion 1994-137 ...................................................................................28
Robert Kry, The “Watchman for Truth”: Professional Licensing and the First
Amendment, 23 SEATTLE U. L. REV. 885, 946 (2000) ............................................... 27-28
Thomas D. Morgan, Professional Malpractice in a World of Amateurs,
40 ST. MARY’S L.J. 891 (2009)........................................................................................33

vi

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

TODD JANSON, GERALD T. ARDREY, CHAD M.
FERRELL, and C & J REMODELING LLC, on behalf of
themselves and on behalf of all others similarly situated,
Plaintiffs,
Case No. 2:10-cv-04018-NKL
v.
LEGALZOOM.COM, INC.,
Defendant.

SUGGESTIONS IN SUPPORT OF DEFENDANT
LEGALZOOM.COM, INC.’S MOTION FOR SUMMARY JUDGMENT
Defendant LegalZoom.com, Inc. (“LegalZoom”), submits the following Suggestions in
support of its motion for summary judgment against all counts of Plaintiffs’ Amended ClassAction Petition.
STATEMENT OF UNCONTROVERTED MATERIAL FACTS
LegalZoom’s Conduct of Business in Missouri During the Class Period
1.

LegalZoom is a privately held corporation incorporated under Delaware law with

its principal place of business in California. LegalZoom was founded in 2000 and has provided
its services continually throughout the United States for over ten years. (Exhibit A, Declaration
of Edward R. Hartman in Support of Defendant LegalZoom.com, Inc’s Motion for Summary
Judgment (“Hartman Decl.”) ¶ 3;1 Ex. B, Deposition of Brian Liu (“Liu Depo.”) 10:10-16; Ex.

1

Exhibits are contained in the Exhibits Appendix to Suggestions in Support of Defendant
LegalZoom.com, Inc.’s Motion for Summary Judgment (“Exhibits Appendix”).

C, Deposition of Edward R. Hartman dated August 3, 2010 (“Hartman Depo. I”) 20:25-21:2;
23:1-23:13; 26:23-27:1.)
2.

LegalZoom provides an online platform for customers to select and create their

own legal documents. (Ex. A, Hartman Decl. ¶ 4; Ex. B, Liu Depo. 97:12-99:4; Ex. C, Hartman
Depo. I 25:1-25:12; 53:13-53:17.)
3.

LegalZoom’s website offers blank legal forms that customers may download,

print, and fill in themselves. (Ex. A, Hartman Decl. ¶ 5 and Ex. 1; Ex. B, Liu Depo. 86:25-88:2;
120:19-121:3; Ex. C, Hartman Depo. I 26:10-26:12)
4.

Among the blank legal forms customers may download from the LegalZoom

website are affidavits, bills of sale, letters, releases, promissory notes, and various types of
agreements. (Ex. A, Hartman Decl. ¶ 6 and Ex. 1; Ex. B, Liu Depo. 86:25-88:2; 120:19-121:3;
Ex. C, Hartman Depo. I 26:10-26:12.)
5.

LegalZoom’s website also provides an internet portal where customers may select

and create their own legal documents online. (Ex. A, Hartman Decl. ¶ 7; Ex. B, Liu Depo.
97:12-99:4; Ex. C, Hartman Depo. I 71:19-72:9.)
6.

Among the legal documents customers may create on the LegalZoom website are

business formation documents, estate planning documents, pet protection agreements, and
copyright, trademark, and patent applications. (Ex. A, Hartman Decl. ¶ 8; Ex. B, Liu Depo.
16:16-20; 45:20-45:24; 50:2-50:16; 73:23-74:10; 80:23-81:10; 85:11-85:24; 90:21-91:18; Ex. C,
Hartman Depo. I 72:4-75:8; 75:20-76:6; 84:8-84:15.)
7.

Plaintiffs have not alleged that there are any legal flaws in any blank legal forms

available on the LegalZoom website or in any legal documents created by a Missouri customer

2

on that website. (Doc. 1-1, Amended Class Action Petition (“Petition”), at 8-23; Doc. 61, Order
certifying class, at 7.)
8.

Whether downloading blank legal forms or in creating their own legal documents

online, customers select the document they deem to be suitable to their needs. (Ex. A, Hartman
Decl. ¶ 9; Ex. C, Hartman Depo. I 25:1-25:12.)
9.

LegalZoom does not recommend or select documents for customers. (Ex. A,

Hartman Decl. ¶ 10; Ex. C, Hartman Depo. I 53:6-53:17.)
10.

The blank legal forms available for downloading from LegalZoom’s website were

drafted by licensed attorneys or are form legal documents published by government agencies.
(Ex. A, Hartman Decl. ¶ 11.)
11.

The templates for the documents customers create using the LegalZoom website

were created by licensed attorneys to apply to common consumer and business situations. (Ex.
A, Hartman Decl. ¶ 12; Ex. B, Liu Depo. 74:11-75:9; 77:20-78:13; Ex. C, Hartman Depo. I
37:14-38:5; 79:6-79:10.)
12.

After selecting a document, the customer enters answers to questions via a

“branching intake mechanism,” or decision tree, called a questionnaire. (Ex. A, Hartman Decl. ¶
13; Ex. B, Liu Depo. 58:9-58:18; 83:14-84:2; 85:25-86:6; 97:12-99:4; Ex. C, Hartman Depo. I
54:7-54:9; 71:19-72:9.)
13.

Customers type in answers to the questions contained in the online questionnaire.

(Ex. A, Hartman Decl. ¶ 14; Ex. B, Liu Depo. 97:12-99:4; Ex. C, Hartman Depo. I 52:12-57:18;
71:19-72:9.)
14.

In some cases, customers select an alternative from a list of choices or

checkboxes. (Ex. A, Hartman Decl. ¶ 15; Ex. C, Hartman Depo. I 52:12-57:18.)

3

15.

The branching mechanism skips questions for sections of the questionnaire that

are inapplicable based on the customer’s prior answers. For example, the questionnaire for a last
will asks if the customer has children; if the customer’s answer is “no,” questions about the
customer’s children are skipped and the customer is taken to a different next question than if the
customer’s answer had been “yes.” (Ex. A, Hartman Decl. ¶ 16; Ex. C, Hartman Depo. I 52:1257:18.)
16.

The online questionnaire process is fully automated. (Ex. A, Hartman Decl. ¶ 17;

Ex. B, Liu Depo. 97:12-99:4; Ex. C, Hartman Depo. I 94:13-94:23; Ex. D, Deposition of Edward
R. Hartman dated February 16, 2011 (“Hartman Depo. II”) 34:9-36:2.)
17.

Customers do not need to have personal interaction with any LegalZoom

employee in the questionnaire process. (Ex. A, Hartman Decl. ¶ 18.)
18.

No LegalZoom employee monitors the customer’s answers to the questionnaire

questions. (Ex. A, Hartman Decl. ¶ 19.)
19.

No LegalZoom employee offers or gives personal guidance on answering the

questions. (Ex. A, Hartman Decl. ¶ 20; Ex. C, Hartman Depo. I 138:22-139:21.)
20.

No LegalZoom employee exercises any form of legal judgment based on the

customer’s specific facts. (Ex. A, Hartman Decl. ¶ 21.)
21.

After the customer has completed the online questionnaire process, the software

automatically creates a completed data file containing the customer’s responses.

(Ex. A,

Hartman Decl. ¶ 22; Ex. B, Liu Depo. 97:12-99:4; Ex. C, Hartman Depo. I 122:9-122:22, 134:319 and Ex. 36; Ex. E, Deposition of Todd Janson (“Janson Depo.”) 52:10-53:21 and Ex. 3.)
22.

A LegalZoom employee then reviews that data file. This review is only for

completeness, spelling and grammar errors, and consistency of names, addresses and other

4

factual information. If the employee spots a factual error or inconsistency, the customer is
contacted and may choose to correct or clarify the answer. (Ex. A, Hartman Decl. ¶ 23; Ex. B,
Liu Depo. 164:1-164:13; 169:2-169:10.)
23.

LegalZoom’s document generation software then automatically enters the

information provided by the customer into the blanks in the document chosen by the customer.
(Ex. A, Hartman Decl. ¶ 24; Ex. B, Liu Depo. 97:12-99:4; Ex. E, Janson Depo 51:5-10 and Ex.
2; Ex. F, Deposition of Chad Ferrell (“Ferrell Depo.”) 36:22-37:5, 39:4-22 and Exs. 1 and 2.)
24.

The software also removes sections of the template that are inapplicable based on

the customer’s answers to the questionnaire. For instance, if a customer has answered that she
has no children in responding to the online questionnaire for a last will, no provisions for
bequests to children are included in the final document. (Ex. A, Hartman Decl. ¶ 25; Ex. C,
Hartman Depo. I 84:16-85:13; 131:8-131:11.)
25.

Customers have no human interaction with any LegalZoom employee during the

automated process in which the software fills in the blanks on a template. (Ex. A, Hartman Decl.
¶ 26.)
26.

All information entered by a customer (other than payment and shipping

information) is used by the software to fill in the blanks in the document chosen by the customer;
the software does not edit or select from the information entered by the customer. (Ex. A,
Hartman Decl. ¶ 27.)
27.

After the customer’s data has been automatically input into the template, a

LegalZoom employee reviews the final document for quality in formatting — e.g., correcting
word processing “widows,” “orphans,” page breaks, and the like. (Ex. A, Hartman Decl. ¶ 28;

5

Ex. B, Liu Depo. 164:1-164:13; 169:2-169:10; Ex. C, Hartman Depo. I 117:7-117:15; Ex. D,
Hartman Depo. II 34:9-35:7.)
28.

The employee then prints and ships the final, unsigned document to the customer.

In rare cases, upon request, the document is emailed to the customer. (Ex. A, Hartman Decl. ¶
29; Ex. C, Hartman Depo. I 120:11-120:25; Ex. D, Hartman Depo. II 12:7-12:20, 34:9-17.)
29.

All Missouri customers who select a given document and provide the same

information will receive an identical final product. (Ex. A, Hartman Decl. ¶ 30.)
30.

After receiving the document, the customer may review, sign, execute and use the

final document at his convenience. The customer may take the unexecuted document to an
attorney for review or may choose not to use the document at all. (Ex. A, Hartman Decl. ¶ 31.)
31.

Under LegalZoom’s refund policy, customers can obtain a full refund (less

charges paid to third parties for filing fees or other costs) for 60 days after their transaction if
they are not satisfied. (Ex. A, Hartman Decl. ¶ 32; Ex. B, Liu Depo. 148:16-148:24; Ex. C,
Hartman Depo. I 107:11-108:13.)
32.

Limited customer service is available to LegalZoom customers by email and

telephone. Only a small percentage of LegalZoom customers request customer service other
than to check an order’s status. (Ex. A, Hartman Decl. ¶ 33.)
33.

LegalZoom customer service representatives are specifically prohibited from

suggesting or recommending any particular legal form or document for a customer, and they are
specifically prohibited from giving customers any legal advice. (Ex. A, Hartman Decl. ¶ 34; Ex.
C, Hartman Depo. I 138:22-139:21; 141:11-141:23.)
34.

All LegalZoom customer service representatives receive extensive training

concerning the company’s strict policy against providing legal advice and are regularly

6

instructed not to recommend forms or documents or give legal advice. (Ex. A, Hartman Decl. ¶
35; Ex. C, Hartman Depo. I 138:22-139:21; 141:11-141:23.)
35.

Customer service representatives are repeatedly informed that giving legal advice

to a customer will result in dismissal. They are also informed that even approaching giving legal
advice to a customer will result in discipline up to and including dismissal. (Ex. A, Hartman
Decl. ¶ 36; Ex. C, Hartman Depo. I 139:5-139:21; 141:11-141:23.)
36.

LegalZoom provides lifetime support to customers after they create their

documents, including access to the website to revise documents or providing replacements for
lost copies. (Ex. A, Hartman Decl. ¶ 37.)
37.

The LegalZoom website contains general information about the law that is

accessible to consumers. (Ex. A, Hartman Decl. ¶ 38; Ex. C, Hartman Depo. I 64:18-65:11.)
38.

This general information is of the sort that may be found in books available in

bookstores or libraries, or on other websites. (Ex. A, Hartman Decl. ¶ 39; Ex. C, Hartman Depo.
I 64:18-65:11.)
39.

Every page on the LegalZoom website contains the following disclaimer:
Disclaimer: The information provided in this site is not legal advice, but
general information on legal issues commonly encountered. LegalZoom is
not a law firm and is not a substitute for an attorney or law firm.
Communications between you and LegalZoom are protected by our
Privacy Policy, but are not protected by the attorney-client privilege or
work product doctrine. LegalZoom cannot provide legal advice and can
only provide self-help services at your specific direction.

(Ex. A, Hartman Decl. ¶ 40.)
40.

The “Terms of Service” on LegalZoom’s website, to which customers must

specifically agree before completing their purchases, contains the following disclaimers:
I understand and agree that LegalZoom is not a law firm or an
attorney and may not perform services performed by an attorney.

7

Rather, I am representing myself in this legal matter. No attorneyclient privilege is created with LegalZoom.
If, prior to my purchase, I believe that LegalZoom gave me any legal
advice, opinion or recommendation about my legal rights, remedies,
defenses, options, selection of forms or strategies, I will not proceed with
this purchase, and any purchase that I do make will be null and void.
I UNDERSTAND THAT LEGALZOOM'S REVIEW OF MY
ANSWERS IS LIMITED TO COMPLETENESS, SPELLING, AND
GRAMMAR, AND FOR INTERNAL CONSISTENCY OF NAMES,
ADDRESSES, AND THE LIKE. I WILL READ THE FINAL
DOCUMENT(S) BEFORE SIGNING IT AND AGREE TO BE SOLELY
RESPONSIBLE FOR THE FINAL DOCUMENT(S). I WILL HOLD
LEGALZOOM AND ITS AGENTS HARMLESS. IF THERE IS
LIABILITY FOUND ON THE PART OF LEGALZOOM, IT WILL BE
LIMITED TO THE AMOUNT PAID FOR THE PRODUCTS AND/OR
SERVICES, EXCEPT FOR THE VAULT SERVICE WHICH IS
LIMITED AS DESCRIBED BELOW, AND UNDER NO
CIRCUMSTANCES WILL THERE BE CONSEQUENTIAL OR
PUNITIVE DAMAGES. SOME STATES DO NOT ALLOW THE
EXCLUSION
OR
LIMITATION
OF
INCIDENTAL
OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
By proceeding with my purchase, I agree to these Terms of Service.
(Ex. A, Hartman Decl. ¶ 41 and Ex. 2; )
41.

No named plaintiff had any personal interaction with any LegalZoom employee

while using the LegalZoom website or afterward. (Ex. E, Janson Depo. 21:4-21:6; 22:2-22:7;
27:1-27:11; 29:18-30:9; 48:5-48:8; 49:25-50:24; Ex. F, Ferrell Depo. 19:2-19:15; Ex. G,
Deposition of Gerald Ardrey (“Ardrey Depo.”) 39:13-40:5; 51:25-52:8.)
42.

The information provided by the named plaintiffs in answering questionnaire

questions on the LegalZoom website (other than billing and shipping information) was used only
to fill in the blank spaces in the named plaintiffs’ final documents. (Ex. E, Janson Depo. 52:1053:21; Ex. F, Ferrell Depo. 42:1-43:22; Ex. G, Ardrey Depo. 63:12-65:4.)

8

43.

No named plaintiff at any time believed he was receiving legal advice while using

the LegalZoom website. (Ex. E, Janson Depo. 49:25-50:24; 59:16-60:3; 68:3-68:9; Ex. F, Ferrell
Depo. 19:10-19:15; 32:3-32:16; 32:23-34:10; Ex. G, Ardrey Depo. 52:9-53:17; 53:22-55:1.)
44.

LegalZoom surveys every customer who completes a transaction on the

LegalZoom website. Ninety-four percent (94%) of respondents say they would recommend
LegalZoom to friends and family. (Ex. A, Hartman Decl. ¶ 42; Ex. C, Hartman Depo. I 69:2170-24.)
Description of the Divorce Kit in In re Thompson, Which the
Missouri Supreme Held Did Not Constitute the Unauthorized Practice of Law
45.

The divorce kit at issue in In re Thompson, 574 S.W.2d 365 (Mo. banc 1978)

(“Thompson”), contained general instructions for filling in and filing the blank forms included in
the kit. (A certified copy of the divorce kit in Thompson is attached as Exhibit 1 to the
Declaration of James T. Wicks in Support of Defendant LegalZoom.com, Inc.’s Motion for
Summary Judgment (“Wicks Decl.”), which is itself Exhibit H in the Exhibits Appendix.
References to the divorce kit in Thompson are to “Ex. H, Wicks Decl. Ex. 1 at __.”)
46.

The divorce kit in Thompson also contained an additional set of “practice” forms,

which were photocopies of the blank forms with handwritten instructions on them for filling in
each space on the blank forms. (Ex. H, Wicks Decl. Ex. 1, passim.)
47.

The instructions contained in the divorce kit in Thompson instruct users to omit or

skip sections that are inapplicable to them. These included sections disposing of real property or
liabilities if the user does not have them, and sections providing for custody and support of
children if the user does not have children. (Id. at 18.)
48.

The instructions contained in the divorce kit in Thompson instruct users to omit

the entire page containing the omitted sections if nothing on the page applies to them. (Id.)

9

49.

The Thompson kit instructions contained an instruction to renumber the pages of

the petition if the page is omitted. (Id. at 22.)
50.

The divorce kit in Thompson described the legal standard for obtaining a divorce

in Missouri at the time the kit was published. (Id. at 6.)
51.

The divorce kit in Thompson explained that, under Missouri law, parties seeking a

divorce must be separated before filing for divorce. (Id.)
52.

The divorce kit in Thompson contained instructions for requesting the docket

clerk to set a hearing. (Id. at 54.)
53.

The divorce kit in Thompson warned that some judges will require both parties to

a divorce to attend a hearing even on a joint petition. (Id. at 28.)
54.

The divorce kit in Thompson instructed users to request repeated continuances of

a hearing before a judge who is known to “give the ‘run-around’ to ‘Do-It-Yourselfers’” in order
to get the case assigned to a judge who may be friendlier to pro se parties. (Id. at 54.)
55.

The divorce kit in Thompson included instructions explaining what to do when the

judge appears and how to come forward to the well of the court, be sworn in, and be seated in the
witness chair. (Id. at 55.)
56.

The divorce kit in Thompson contained the text, with blanks for names and other

data, of a “Statement” with instructions to the kit’s user to read the “Statement” into the record as
testimony. (Id.)
57.

The “Statement” contained blanks to be filled in with the facts of the marriage and

separation. (Id.)

10

58.

The “Statement” instructed the user to read into the record the statement that

“[t]here is no reasonable likelihood that the marriage can be preserved and the marriage is,
therefore, irretrievably broken.” (Id.)
59.

The divorce kit in Thompson warned users of the kit not to be “emotionally

swayed” if he or she were to take the completed uncontested divorce forms to an attorney for
review and the attorney tried to “plant undue fear.” (Id. at 11.)
Conclusions of LegalZoom’s Expert Dean Burnele V. Powell
60.

Form books and books containing information about the law for nonlawyers have

been published for centuries for the use of citizens who choose to exercise their right to represent
themselves in their own legal matters rather than hire a lawyer. (Expert Witness Report of
Burnele V. Powell (“Powell Report”) at 19, 20 & nn.16, 17. The Powell Report is attached as
Exhibit 1 to the Declaration of Burnele V. Powell in Support of Defendant LegalZoom.com,
Inc.’s Motion for Summary Judgment (“Powell Decl.”), which is itself Exhibit I in the Exhibits
Appendix. References to the Powell Report are to “Ex. I, Powell Decl. Ex. 1 at __.”)
61.

The LegalZoom website enables the user to answer questions related to the form

in a direct manner, so that by answering an empirical inquiry or choosing between ‘Yes’ or ‘No’
the user is able to instruct the computer to take exactly his or her desired course of action. (Ex. I,
Powell Decl. Ex. 1 at 23.)
62.

LegalZoom’s interface with the user simplifies the production of the form by

allowing the user to focus on the desired content of the form spaces, rather than the form itself.
(Id.)
63.

LegalZoom’s interface with the user enables the user to instruct the computer on

the basis of choices that the user — not the computer — makes by either providing information

11

(e.g., name, address, telephone number); choosing between basic alternatives (e.g., an alternative
holder of a power of attorney or not); or indicating preferences from a list of choices. (Id.)
64.

Provision of an electronic format for users to fill in the blanks in the manner that

the user dictates — whether it involves the use of pre-formatted hard-copy pages of paper, preformatted electronic facsimiles of a page of paper, or the uploading of responses to questions that
will be recorded electronically and subsequently printed out as pre-formatted electronic
facsimiles of a page of paper — has not been what the legal profession has focused on as the
practice of law. (Ex. I, Powell Decl. ¶ 7 and Ex. 1 at 3.)
65.

No computer (or owner of a computer) can practice law or render a legal opinion

by virtue of providing a mechanism for an individual to record self-generated information. (Ex.
I, Powell Decl. ¶ 6 and Ex. 1 at 2.)
66.

No reasonable person who is seeking counsel, advice, recommendations, or

explanations would turn to a website, where the most that they could expect to receive is
impersonal, generalized information that is placed into a form, but not focused on the discrete
needs of an individualized client. (Ex. I, Powell Decl. Ex. 1 at 17-18.)
67.

Office stores in Missouri sell a number of interactive computer software packages

that permit customers to create their own wills, corporations, powers of attorney, and other
business and personal documents. Among these are Quicken WillMaker Plus 2011 and Quicken
Legal Business Pro 2011. (Ex. H, Wicks Decl. ¶ 3. Copies of the Quicken WillMaker Plus 2011
and Quicken Legal Business Pro 2011 have been filed with the Court as Exhibits 2 and 3 of the
Wicks Declaration; see Ex. H, Wicks Dec. ¶¶ 4, 5.)
68.

Quicken WillMaker Plus 2011 and Quicken Legal Business Pro 2011 both

operate much like the software on LegalZoom’s website, asking users standardized questions,

12

inserting their answers into blanks in standardized legal forms, and automatically generating
completed forms for the user to review and execute. (Ex. I, Powell Decl. at ¶ 10.)
Other Forms Available in Missouri
69.

The Missouri Bar Continuing Legal Education Department (“MoBarCLE”) offers

for sale “Forms Packages” available on CD-ROM that contain forms in a variety of legal practice
areas. (Ex. H, Wicks Decl. ¶ 6; a copy of the MoBarCLE Order Form for the “Forms Packages”
is attached to the Wicks Decl. as Exhibit 4.)
70.

The MoBarCLE CD-ROM of Estate Planning/Trusts forms sells for $99 and

includes, among others, forms for a “Simple Will,” an “Estate Planning Questionnaire,” and a
“Will Establishing Testamentary Trust for Minor Children.” (Ex. H, Wicks Decl. Ex. 4.)
71.

The MoBarCLE CD-ROM of Estate Planning (Family Business) forms sells for

$99 and includes, among others, forms for “Articles of Organization — Family LLC,”
“Operating Agreement — Family LLC,” “Family Limited Partnership Agreement,” and “Estate
Planning Questionnaire — Closely Held Corporations.” (Ex. H, Wicks Decl. Ex. 4.)
72.

The MoBarCLE CD-ROM of Power of Attorney forms sells for $79 and includes,

among others, forms for “Durable Power of Attorney (Long Form),” “Durable Power of
Attorney (Short Form),” and “Health and Personal Care General Springing Durable Power of
Attorney.” (Ex. H, Wicks Decl. Ex. 4 at .)
73.

The Missouri Bar publishes on its website a blank Durable Power of Attorney For

Health Care and Health Care Directive form available to the general public for downloading and
use. The form includes specific directions for filling out and using the form, including a section
of Questions and Answers to help the user understand the form, with the question “Do I need a

13

lawyer to complete this form?” and the answer “No. However, if you do not feel this form meets
your needs, you may want to consult a lawyer.”
http://members.mobar.org/pdfs/publications/public/dpa.pdf.
74.

The State of Missouri, acting through its Secretary of State, provides online

access to more than one hundred pages of forms and instructions for the use of the public, and
specifically for individuals acting pro se. See http://www.sos.mo.gov/forms.asp. The Secretary
of State’s forms include those for the formation of a limited liability company, limited
partnership, limited liability partnerships, trademarks and service marks, not for profit
corporations, and fictitious names. (Ex. I, Powell Decl. Ex. 1 at 20.)
75.

The Missouri Supreme Court’s website mandates that “every party not

represented by counsel who participates in a family law case shall use the forms approved by the
Supreme Court” and provides the forms to be used. See www.courts.mo.gov/page.jsp?id=38346.
The “Your Missouri Courts” website — http://www.courts.mo.gov/page.jsp?id=525 — also
provides forms for “Election of Surviving Spouse,” “Application to Amend Order Refusing
Letters,” “Petition for Order of Child Protection,” “Lien Request,” and small claims court forms,
for which the website provides specific notice that “clerks will provide assistance in completing
these forms”. See http://www.courts.mo.gov/page.jsp?id=704. (Ex. I, Powell Decl. Ex. 1 at 21.)
Statements by the Federal Trade Commission
76.

In 2002, the FTC and the Antitrust Division of the United States Department of

Justice jointly sent detailed comments and criticisms on the American Bar Association’s
Proposed Model Definition of the Practice of Law.
http://www.ftc.gov/opa/2002/12/lettertoaba.shtm.

14

77.

The FTC noted that “[]lawyers historically have used the unauthorized practice of

law statutes to protect against perceived incursions by … groups that seemed to be providing
legal services.” (Id.)
78.

The FTC also found that “consumers generally benefit from lawyer-non-lawyer

competition in the provision of certain services” and “one should proceed cautiously, mindful of
the unintended consequences that may unduly limit the choices of consumers.”

The FTC

recognized that “[w]ill writing and other legal form fill software packages can be significantly
less expensive than hiring an attorney to draft a will or other legal document” and that “[t]hese
services plainly benefit consumers.” (Id.)
79.

In 2007, the FTC reiterated these points in a letter to the Rules Committee of the

Superior Court of Connecticut, noting that based on survey evidence, “complaints about the
unauthorized practice of law in most states did not come from consumers, the potential victims
of such conduct, but from attorneys, who did not allege any claims of specific injury.”
http://www.ftc.gov/be/V070006.pdf.

15

ARGUMENT
LEGALZOOM IS ENTITLED TO SUMMARY JUDGMENT
I.

INTRODUCTION
The rights of citizens to represent themselves in their own legal matters goes back

centuries in this country. Since colonial days, legal forms, form books, and books containing
information about the law have been published for the use of individuals who choose to represent
themselves rather than hire a lawyer. (Statement of Facts (“SOF”) 60.) The right to publish such
forms, books, and legal information is protected by the First Amendment.
The Great Depression saw lawyers organize to attempt to restrict nonlawyers from
engaging in activities that were thought to be the special province of lawyers. Barlow F.
Christensen, The Unauthorized Practice of Law:

Do Good Fences Really Make Good

Neighbors—or Even Good Sense?, 1980 AM. B. FOUND. RES. J. 159, 189-197 (1980). In the
1970s, publishers of legal forms and information began to employ new technology that advanced
beyond books, and these two trends clashed when the sale of photocopied “divorce kits” was
challenged by state bar unauthorized practice commissions in the high courts of a number of
states. In all of these cases, including Missouri, state supreme courts held that, in the absence of
individualized advice to customers, the creation, publication, and sale of blank forms, detailed
instructions for filling them in, and information about the law did not constitute the unauthorized
practice of law. Blank legal forms, form books, and do-it-yourself kits have become widely
available in Missouri and elsewhere. (SOF 67.)
Document assembly software and websites represent the latest development in the
application of new methods of publication of legal forms for individuals who choose to represent
themselves. Instead of books or photocopied kits, over the last ten years LegalZoom and others

16

have provided access to computer software and internet technology to empower customers to
create their own legal documents. There is no dispute in this case as to what services LegalZoom
offers and how it does so. On its website, LegalZoom allows customers to select a desired
document and fill out an automated questionnaire, the answers to which are automatically
populated into standardized blank forms, which are then reviewed for formatting only, printed,
and shipped to the customer for review and execution. (SOF 5-28.)
LegalZoom is not alone in applying computer technology to legal forms. Office stores
throughout Missouri sell interactive software that permits customers to create their own wills,
corporations, powers of attorney, and other legal documents.

(SOF 67.)

These self-help

materials fill an important vacuum in our society. Low- and middle-income Americans are
underserved by lawyers, who have priced themselves out of reach of such consumers. The
seminal American Bar Association study estimates that 71% of civil legal issues go unaddressed
in low-income households, and 61% in middle-income homes.
ASSOCIATION CONSORTIUM
JUSTICE, A SURVEY

OF

ON

LEGAL SERVICES

AND THE

AMERICANS, MAJOR FINDINGS

See AMERICAN BAR

PUBLIC, LEGAL NEEDS

FROM THE

AND

CIVIL

COMPREHENSIVE LEGAL NEEDS

STUDY, at 27-28 (1994).
Named Plaintiffs and their counsel represent a class of Missouri consumers who used the
LegalZoom website to create their own legal documents. They challenge LegalZoom under §
484.010.2 RSMo, which provides:
The “law business” is hereby defined to be and is the advising or counseling for a
valuable consideration of any person, firm, association, or corporation as to any
secular law or the drawing or the procuring of or assisting in the drawing for a
valuable consideration of any paper, document or instrument affecting or relating
to secular rights or the doing of any act for a valuable consideration in a
representative capacity, obtaining or tending to obtain or securing or tending to
secure for any person, firm, association or corporation any property or property
rights whatsoever.

17

Plaintiffs do not allege that any LegalZoom document was legally flawed or otherwise
insufficient for its purpose (SOF 7), and no court has ever so held. Indeed, plaintiffs do not
claim that any class member suffered any harm whatsoever as a result of services provided by
LegalZoom. In fact, 94% of LegalZoom customers who respond to its survey say they would
recommend LegalZoom to friends and family. (SOF 44.) Yet plaintiffs and their counsel seek to
collect refunds and fees on the ground that the services LegalZoom provided these customers
allegedly constitute the unauthorized practice of law. This case is thus an attempt to stop the
public’s right to represent themselves in legal matters without a single allegation of consumer
harm.
Unlike the cases in the 1970s, this case is not brought by the Missouri Bar or its advisory
committee on unauthorized practice, but by private attorneys. No official entity has endorsed
plaintiffs’ case or alleged that LegalZoom is engaged in unauthorized practice in this State
despite ten years of service to Missouri customers. Indeed, the official views of the Missouri Bar
on the issue are best demonstrated by the fact that the Continuing Legal Education Department
of the Missouri Bar, like OfficeMax, Staples — and LegalZoom — sells its own sets of
computerized legal form documents and instructions on CD-ROM. (SOF 69-72.)
Plaintiffs do not dispute what LegalZoom does. At the class certification stage, plaintiffs
acknowledged that LegalZoom did not give any class member individualized legal advice. This
case is therefore ripe to be defeated as a matter of law.

18

II.

LEGALZOOM’S WEBSITE DOES NOT CONSTITUTE THE UNAUTHORIZED
PRACTICE OF LAW UNDER MISSOURI LAW.
A.

Under In re Thompson, LegalZoom’s Website Is Not the Unauthorized
Practice of Law.

This motion asks the Court to apply settled law as announced in In re Thompson, 574
S.W.2d 365, 369 (Mo. banc 1978) (“Thompson”), in the only way that is sensible because the
only difference between the internet and photocopied forms is purely one of technology, not
legal substance. This is the conclusion reached by a distinguished legal scholar on the subject,
Dean Burnele V. Powell, whose expert report is provided to the Court is support of this motion.
(SOF 60-66.)
In the Constitution of 1875, the State of Missouri enshrined the right to free speech,
directing that “no law shall be passed impairing the freedom of speech, no matter by what means
communicated.” MO. CONST. art. I, § 8 (emphasis added). The framers recognized that while
the means by which people communicate might change over time, their rights did not: “[E]very
person shall be free to say, write or publish, or otherwise communicate whatever he will on any
subject . …” Id. Consistent with this broad mandate, the Court held in Thompson that the
advertisement and sale of “divorce kits” containing blank forms, instructions for filling them out,
and information about the law “does not constitute the unauthorized practice of law so long as
the respondents and other[s] similarly situated refrain from giving personal advice as to legal
remedies or the consequences flowing therefrom.”
Consistent with Thompson, the highest courts of a number of states have held that the sale
of legal forms, form kits and form books does not constitute the unauthorized practice of law.
See, e.g., N.Y. County Lawyers Ass’n v. Dacey, 234 N.E.2d 459 (N.Y. 1967); Or. State Bar v.
Gilchrist, 538 P.2d 913 (Or. 1975); Colo. Bar Ass’n v. Miles, 557 P.2d 1202 (Colo. banc 1976);

19

State Bar v. Cramer, 249 N.W.2d 1 (Mich. 1976), abrogated on unrelated grounds by Dressel v.
Ameribank, 664 N.W.2d 151 (Mich. 2003); Fla. Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978);
State ex rel. Schneider v. Hill, 573 P.2d 1078 (Kan. 1978).2 A number of these cases also held
that acting as a “scrivener” by filing in the blanks in such forms with information provided by
customers was not the unauthorized practice of law. See, e.g., Fla. Bar v. Brumbaugh, 355 So.
2d 1186, and Colo. Bar Assoc. v. Miles, 557 P.2d 1202, both cited in Thompson. These decisions
recognized that the right to publish such forms and legal information rested on the individual’s
basic right to represent himself in his own legal matters rather than hire a lawyer. N.Y. County
Lawyers’ Ass’n v. Dacey, 283 N.Y.S.2d 984, 999 (N.Y. App. Div. 1967) (Stevens, J., dissenting),
rev’d and dissenting opinion adopted, 234 N.E.2d 459; State Bar, 249 N.W.2d at 7; Brumbaugh,
355 So. 2d at 1190, 1192.
The Thompson Court described the documents the respondents published and sold:
The “Divorce Kits” offered for sale in this state consist of a packet
approximately one-fourth inch in thickness. Much of the kit consists of various
forms pertaining to an action for an uncontested dissolution of marriage. Blank
spaces, with instructions on practice forms, are provided for the insertion of
specific items applicable to the parties involved in the dissolution. These forms
include two forms for a petition for dissolution of marriage, one a “joint” petition,
and one an individual petition, as well as other forms including affidavits of
nonmilitary service, waivers of notice of hearing, affidavits needed to obtain
service by publication, financial statements, and a decree form. These forms are
accompanied by two kinds of instructions, a set of general procedural instructions
designed to instruct as to what forms to file, in what order and where, and
instructions on how to prepare the forms.
574 S.W.2d at 366.
The divorce kit in Thompson was attached to the stipulation of facts on which the case
was decided. A certified copy of the kit from the Thompson record is included with this motion
2

See also People ex rel. Attorney Gen. v. Bennett, 74 P.2d 671, 672 (Colo. 1937); People
v. Landlords Prof’l Servs., 264 Cal. Rptr. 548 (Cal. App. 1989).

20

as Exhibit 1 to the Wicks Declaration, Exhibit H in the Exhibits Appendix. The kit reveals a
number of facts that were before the Supreme Court when it found that selling the kit was not the
practice of law. For instance, not only did the practice forms contain general instructions for
filling in and filing the forms, they also provided specific instructions for filling in each
individual blank on each of the forms. (SOF 45-46.) The instructions further instructed users to
omit or skip sections that might be inapplicable to them, including sections disposing of real
property or liabilities if the user had none, and sections providing for custody and support of
children if the user had no children. (SOF 47.) The kit also contained an instruction to omit the
entire page containing those sections if nothing on the page applied — as well as reminder to
renumber the pages. (SOF 48-49.)
The Thompson kit also contained information about the law and procedures in the divorce
court. It described the legal standard for obtaining a divorce in Missouri and explained that the
parties must be separated before filing. (SOF 50-51.) In contrast to the LegalZoom forms, the
Thompson kit contained instructions for requesting the docket clerk to set a hearing and a
warning that some judges would require both parties to attend a hearing even on a joint petition.
(SOF 52-54.) The kit further had courtroom instructions explaining what to do when the judge
appears and how to come forward to the well of the court, be sworn in, and be seated in the
witness chair. (SOF 55.) The kit even contained the text, with blanks for names and other data,
of a “Statement” that the kit’s user was instructed to read into the record as his or her testimony.
(SOF 56-58.)
The Court’s description of the kit, set out in the block quote above, clearly indicates that
the Court reviewed the kit in detail. In deciding whether the kit constituted unauthorized
practice, the Thompson Court first laid out Missouri’s unauthorized practice of law statute (the

21

“UPL statute”). The Court then analyzed in detail cases in other states — including Cramer,
Dacey, Gilchrist, Miles, and Brumbaugh — that held that blank forms, instructions, and legal
information were not unauthorized practice. 574 S.W. 2d at 367-69.
The Thompson Court noted that the regulation of the unauthorized practice of law “is not
to protect the Bar from competition but to protect the public from being advised or represented in
legal matters by incompetent or unreliable persons.” Id. at 367, quoting Hulse v. Criger, 247
S.W.2d 855, 857-858 (Mo. banc 1952). The Court concluded that “the advertisement and sale by
the respondents of the divorce kits does not constitute the unauthorized practice of law so long as
the respondents and other[s] similarly situated refrain from giving personal advice as to legal
remedies or the consequences flowing therefrom.” 574 S.W.2d at 369.
The Missouri Constitution protects free expression “no matter by what means
communicated,” and thus Missouri law cannot treat different means of communication
differently. The undisputed evidence in this case shows that LegalZoom’s publishing of a
website that provides access to online document assembly software is the functional equivalent,
in all material aspects, of the legal form kit approved by the Missouri Supreme Court in
Thompson. This requires the conclusion that publishing such as LegalZoom performs does not
violate § 484.010.
First, the general information that LegalZoom provides on its website is the equivalent of
the legal information provided in the Thompson kit describing divorces and legal terms related to
divorce. LegalZoom’s information is simply published on the internet, rather than on paper.
Second, LegalZoom’s creation of the blank templates that are used in the document
assembly software is the functional equivalent of the Thompson kit publishers’ drafting blank
forms with various pages and paragraphs to be used by their customers as applicable.

22

Third, LegalZoom’s online questionnaire and auto-populating software are the functional
equivalent of the Thompson kit’s instruction to their users to use forms if applicable, to skip
inapplicable sections depending on how the user answers questions, and to renumber pages if
inapplicable sections have been skipped. The only difference is that, with LegalZoom, the
computer automates the document-assembly chore for the customer, but the customer is still
providing the information and making the choices that create the form.
Finally, the general information LegalZoom provides regarding executing and/or filing
the finished document is akin to the detailed procedural instructions contained in the approved
Thompson divorce kit. Thompson made clear that this type of information, even though framed
as an instruction to the user, is not “personal advice as to legal remedies or the consequences
flowing therefrom,” and therefore not the practice of law. 574 S.W.2d at 369.
There is no material difference between the Thompson experience approved by the
Missouri Supreme Court and the LegalZoom experience.
B.

LegalZoom’s Website Is Not the Unauthorized Practice of Law Under Cases
Decided After Thompson.

Nothing in the Missouri Supreme Court’s more recent jurisprudence has questioned the
continued validity of the holding in Thompson. Even in cases that stretched the UPL statute to
cover various forms of dubious conduct, the Court has not overturned Thompson or given any
indication that it regards the decision as bad or questionable law.
Indeed, the Supreme Court reaffirmed Thompson’s continuing viability as recently as
1996. In In re Mid-America Living Trust Associates, Inc., 927 S.W.2d 855 (Mo. banc 1996), the
Court held that a combination of personalized and aggressive marketing of living trusts, giving
customers specific, individualized legal advice that they needed living trusts, and preparing
living trust documents constituted the unauthorized practice of law. But the Court reaffirmed

23

that “non-attorneys may sell generalized legal publications and ‘kits,’ so long as no ‘personal
advice as to the legal remedies or consequences flowing therefrom’ is given. In re Thompson,
574 S.W.2d at 369,” and that “[t]his is not a situation such as in In re Thompson where a
generalized ‘kit’ was sold.” 927 S.W.2d at 859, 864 (emphasis in original).
In In re First Escrow, Inc., 840 S.W.2d 839 (Mo. banc 1992), Eisel v. Midwest
BankCentre, 230 S.W.3d 335 (Mo. banc 2007), and Carpenter v. Countrywide Home Loans, Inc.,
250 S.W.3d 697 (Mo. banc 2008), the Supreme Court held that § 484.010.2 applied to escrow
companies and banks that charged document preparation fees for drafting customers’ legal
documents in the course of transactions to which the companies or banks were parties.
Thompson is not discussed in these cases, and nothing in them questions its holding that the
advertisement and sale of legal forms, instructions for filling them out, and general legal
information is not the unauthorized practice of law.
These cases are all factually distinguishable both from Thompson and from the instant
case in more than just the personal interaction between the customer and the party engaged in
preparing the documents. In Mid-America Living Trust, the Court discussed commentators’
analysis of the living trust industry’s “abusive marketing practices . . . aimed at the elderly,” and
“the high-pressure tactics and exaggerated benefits used to promote living trusts.” 927 S.W.2d at
860.

In Eisel and Carpenter, bank customers seeking mortgages were charged document

preparation fees for, inter alia, promissory notes and deeds of trust they did not request that
permitted the banks to sell the mortgages on the secondary market, a benefit to the banks. See
Eisel, 230 S.W.3d at 337; Carpenter, 250 S.W.2d at 699-700. The cases thus featured an
abusive practice pursuant to which a customer who wanted a mortgage had to pay for the

24

preparation of documents meant to protect the interests of another party to the transaction — the
bank — whose interests were adverse to hers.
By contrast, LegalZoom’s customers come to its website to create their own legal forms
for their own use. They are not forced to accept and pay for forms drafted by the other side of a
transaction to protect the adverse party’s interests.

LegalZoom customers want the legal

documents they purchase; they select their own forms, and they provide the information
contained in their forms. Plaintiffs here do not allege that LegalZoom has engaged in abusive
marketing practices, that any document produced by consumers using LegalZoom harmed any
class member in any way, or that any such document was legally flawed or otherwise insufficient
for its purpose.

LegalZoom surveys every customer who completes a transaction on the

LegalZoom website, and the respondents overwhelmingly recommend LegalZoom.
III.

MISSOURI’S UPL STATUTE DOES NOT APPLY TO LEGALZOOM’S
WEBSITE.
A.

The UPL Statute Does Not Apply to LegalZoom.

On the face of Missouri’s UPL statute, providing automated self-help software on the
internet does not constitute “drawing or procuring” documents affecting secular rights for
valuable consideration. In its certification Order, however, the Court described “the central issue
of the case” as “what type of online interaction between buyer and seller of legal forms
constitutes ‘assisting in the drawing for a valuable consideration of any paper, document or
instrument affecting or relating to secular rights’” under § 484.010. Doc. 61 at 10 (emphasis
added).
Section 484.010 has not been amended since 1939. Thus, the language presently in the
statute, including the “assisting” clause, was in the section in 1978 when the Supreme Court
decided Thompson.

Under Thompson, “assisting in the drawing” clearly does not include

25

publishing information, forms, instructions and tools for individuals to create their own legal
documents. As shown above, LegalZoom’s publishing activity tracks the publishing activities in
Thompson in all significant respects. And since Thompson was decided, neither the Missouri
Supreme Court nor any other court has given any indication — express or implied — that
conduct and activities that did not constitute “assisting in the drawing” of a document relating to
secular rights” in 1978 now fall within those definitions.
The only difference between the form-publishing in the present case and that in
Thompson is the difference in technology.

Where Thompson used mimeographed or

photocopied blank forms with typed and handwritten instructions for filling in the blanks — then
the most advanced technology available — LegalZoom uses computer technology to publish an
internet website on which customers can answer standardized, fixed questions and have their
answers inserted automatically into fixed and standardized written forms.
So, does the use of document assembly software so differ from the use of a book as to
transform the former into the practice of law? In other words, can a computer practice law by
assembling documents?
It is the reasoned conclusion of Dean Burnele V. Powell that the answer to both of those
questions is “No.” A former dean of the University of Missouri-Kansas City School of Law, a
teacher of legal ethics, and the author of a casebook on the legal profession, Dean Powell used
the LegalZoom website to draft various Missouri forms and concluded:
•

“[T]he LegalZoom website enables the user to answer questions related to the
form in a direct manner, so that by answering an empirical inquiry or choosing
between ‘Yes’ or ‘No’ the user is able to instruct the computer to take exactly
his or her desired course of action.”

•

“Provision of an electronic format for users to fill in the blanks in the manner
that the user dictates – whether it involves the use of pre-formatted hard-copy
pages of paper, pre-formatted electronic facsimiles of a page of paper, or the

26

uploading of responses to questions that will be recorded electronically and
subsequently printed out as pre-formatted electronic facsimiles of a page of
paper – has not been what the legal profession has focused on as the practice
of law.”
•

“No computer (or owner of a computer) can practice law or render a legal
opinion by virtue of providing a mechanism for an individual to record selfgenerated information.”

•

“No reasonable person who is seeking counsel, advice, recommendations, or
explanations would turn to a website, where the most that they could expect to
receive is impersonal, generalized, information that is placed into a form, but
not focused on the discrete needs of an individualized client.”

(SOF 61-66.)3
These conclusions parallel those in a remarkable piece of legal scholarship by Robert Kry
which applied his generation’s knowledge of the internet to historical unauthorized practice
jurisprudence and concluded that technology does not change the settled principle that forms and
self-help materials do not constitute the practice of law. Robert Kry, The “Watchman for
Truth”: Professional Licensing and the First Amendment, 23 SEATTLE U. L. REV. 885, 946
(2000).
In concluding that “there is no compelling reason to treat software publications
differently from print publications,” Kry explained:
. . . [T]he analytical process involved in the use of legal software is no
different from that involved in a self-help book. This is best demonstrated by way
of example. Consider a book that requires a reader to answer a yes/no question
concerning her personal circumstances. The book advises that if the answer is
yes, she should follow the instructions on this page; if not, she should follow the
instructions on the next page. Now, compare this with a software program that
poses the same yes/no question to the user, and, based on the user’s response,
displays a different recommendation. There is no plausible, meaningful
distinction between these two examples. Each case involves the same analytical
3

Dean Powell also used document-assembly software packages available in office stores
in Missouri which buyers can use to create legal documents. He concluded that these products
operate much like LegalZoom’s software. (SOF 67-68.)

27

process: the author (or programmer) analyzes the law and identifies a legal
rule. She then drafts a question that captures which factual circumstances fall on
which side of the line, and writes a recommendation applicable for each outcome.
. . . [T]he generation of the appropriate recommendation is completely
algorithmic. Every “yes” answer always leads to one particular recommendation,
every “no” answer always leads to another. The only way in which the two
examples differ is that the reader of the book must follow instructions to turn to a
specified page while the user of the software need take no action; after submitting
a response, the appropriate text appears automatically. This is merely a
peculiarity of the medium—books, unlike expressive software, cannot control the
form of their own presentation after being printed.
Id. at 946-48 (footnotes omitted); cf. Oregon Formal Ethics Opinion 1994-137, at 2 (“The use of
self-help legal software, whether achieved by running a program on one’s own computer or by
remotely using the online service’s program, is simply a high-tech way to access text contained
in a database. Such database information in electronic form is essentially no different than the
information contained in a self-help legal book or divorce kit. . . . In a sense, the customer who
operates the legal software, whether on a personal computer or online using an information
service, is the one doing the customizing, much as does the reader of a legal self-help text or one
completing a do-it-yourself legal kit.”)
Kry also notes that “[t]here is no conceptual distinction between drafting a form
containing certain language, and recommending that a user adopt certain language in a form. . . .
[U]ntil the user takes the affirmative step of actually executing a document that a software
program recommends, the drafted instrument has no legal force.” Id. at 949-50 (footnotes
omitted). Documents that a customer creates on LegalZoom’s website are not effective until the
customer executes them at home or after consulting others.
Plaintiffs can derive no comfort from the vacated decision in Unauthorized Practice of
Law Committee v. Parsons Technology, Inc. d/b/a Quicken Family Lawyer, No. Civ.A. 3:97CV2859H, 1999 WL 47235 (N.D. Tex. Jan. 22, 1999), vacated and remanded, 179 F.3d 956 (5th

28

Cir. 1999). The district judge held that Texas’ UPL statute prohibited the sale of the legal
document software program Quicken Family Lawyer. Unlike Thompson in Missouri, two Texas
intermediate courts had previously held that the sale of legal self-help kits was the unauthorized
practice of law in Texas, and that personalized interaction was not necessary to a violation of the
UPL statute. See id. at *5-7 (discussing Palmer v. Unauthorized Practice of Law Comm., 438
S.W.2d 374 (Tex. App. 1969), and Fadia v. Unauthorized Practice of Law Comm., 830 S.W.2d
162 (Tex. App. 1992)).
Parsons had a very short shelf life. Because the decision ran against both the clear
weight of law and the correct understanding of software, the Texas Legislature immediately
amended its UPL statute to clarify that the publication and sale, including “by means of an
Internet web site, of written materials, books, forms, computer software, or similar products” is
not the practice of law if accompanied by a disclaimer that the products are not a substitute for
the advice of a lawyer. See TEX. GOV’T CODE ANN. § 81.101(c). The Fifth Circuit then vacated
based on the Legislature’s clarification of the statute’s scope. 179 F.3d 956 (5th Cir. 1999).
LegalZoom has used simple computer and internet technology for over ten years to allow
customers to create and fill out legal forms. Its use of such technology does not transform the
same conduct that did not constitute “assisting in the drawing” of legal documents in Thompson
into conduct that now violates § 484.010. The Court should therefore not read § 484.010 to
cover LegalZoom’s use of computer and internet technology.
B.

In Order To Avoid Constitutional Issues, the Court Should Read the
Missouri UPL Statute So As Not To Prohibit LegalZoom’s Business
Practices.

Reading § 484.010 to reach LegalZoom’s providing online tools that allow consumers to
create their own legal documents would implicate a number of constitutional rights, including

29

freedom of speech, due process, and citizens’ right to self-representation. It is axiomatic that the
statute should be construed so as to avoid these constitutional issues. See FCC v. Fox Television
Stations, Inc., 129 S. Ct. 1800, 1811-12 (2009), citing Edward J. DeBartolo Corp. v. Florida
Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
1.

If the Court Were to Read the Missouri UPL Statute to Apply to
LegalZoom, the Statute Would Violate the First Amendment.

If the Court were to conclude that § 484.010 can be read to apply to LegalZoom’s
publication of its website, such a reading would violate the First Amendment and Article I, § 8 of
the Missouri Constitution. The publication of books containing information about the law, blank
forms, and instructions for completing them is protected by the First Amendment. In Dacey v.
New York County Lawyers’ Ass’n, 423 F.2d 188 (2d Cir. 1969), non-attorney Norman Dacey’s
book, How to Avoid Probate, contained information about the probate system, instructions for
avoiding it by means of various trusts, and blank trust forms with specific instructions for their
assembly and use. Id. at 189-90. The Second Circuit concluded that “Dacey’s book was . . .
protected by the first amendment’s guarantee of free speech and any attempt to suppress it on the
ground that it constituted the unauthorized practice of law must be scrutinized with extreme
care.” Id. at 193.
Plaintiffs ask the Court to apply Missouri’s unauthorized practice statute to bar
LegalZoom from publishing the same types of forms, information, and instructions that were
approved in Thompson and Dacey. If the Missouri UPL statute were applied to these materials, §
484.010 could not withstand the scrutiny required by the First Amendment of the U.S.
Constitution and Article I, § 8 of the Missouri Constitution.
Regulations treating the same speech differently based on the means of publication (e.g.,
online versus paper) are impermissible under the First Amendment and the Missouri

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Constitution. Thus, in ForSaleByOwner.com Corp. v. Zinnemann, 347 F. Supp. 2d 868 (E.D.
Cal. 2004), the court held that California could not require an online apartment listing service to
obtain a real estate broker’s license before charging sellers to list their home for sale, while not
requiring such licensure of newspapers that charge sellers to advertise their homes, because the
“real estate licensing scheme impermissibly differentiates between certain types of publications
carrying the same basic content”; the court relied on the principle that the state “cannot make
arbitrary distinctions based on the manner of speech or the media used for publication.” Id. at
877, citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 763 (1988), Greater New
Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 195 (1999), and City of Ladue v.
Gilleo, 512 U.S. 43, 48 (1994). Therefore, a holding that LegalZoom’s website is impermissible,
while allowing publication of functionally equivalent paper forms, would violate the First
Amendment.
Applying § 484.010 to LegalZoom’s products would also run afoul of the First
Amendment principle that regulations that burden a particular type of speech are subject to strict
scrutiny, requiring that the regulation be narrowly tailored to meet a compelling government
interest and that there be no less restrictive alternatives to the regulation. See Simon & Schuster,
Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991); Ward v. Rock Against Racism,
491 U.S. 781, 800 n.7 (1989). Application of the Missouri UPL statute to LegalZoom would be
a content-based regulation because it would be premised entirely on the nature of LegalZoom’s
internet publications. See ForSaleByOwner.com Corp., 347 F. Supp. 2d at 877 (“California’s
real estate licensing laws amount to content-based regulation because they ‘single out’ publishers
of real estate advertising and information, like FSBO, ‘for a burden the state places on no other
[speech] and is directed only at works with a specified content.’”) (quoting Simon & Schuster,

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502 U.S. at 116); see R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 391 (1992); Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642-43 (1994).
Missouri’s UPL statute is not narrowly tailored to meet a compelling government interest
with respect to such internet publications. Missouri has a compelling interest in “protect[ing] the
public from being advised or represented in legal matters by incompetent or unreliable persons.”
Thompson, 574 S.W.2d at 367. Applying the statute as plaintiffs request, however, would
operate as a broad ban on the internet sale of blank forms and the use of computer software and
internet technology that allows persons to fill in legal forms — without any finding that resulting
documents are not legally sound or are legally flawed and therefore capable of harming the
public. There is no claim in this case that any of LegalZoom’s products fail to accomplish the
purposes for which they are sold. (SOF 7.) There is no reason to believe that internet- or
software-based fill-in-the-blank programs are more harmful to the public than are fill-in-theblank form books which are permitted by Thompson — or indeed are harmful at all.
In addition, the practices of other states clearly demonstrate that there are less restrictive
alternatives to a total ban on nonlawyer communications involving legal forms that would also
meet Missouri’s interest in protecting consumers from defective forms. For example, both
California and Arizona regulate, license, and certify nonlawyers who assist in or fill out legal
forms for others. See CAL. BUS. & PROF. CODE §§ 6400-6401.6 (California Legal Document
Assistant Program); ARIZ. CODE OF JUD. ADMIN. § 7-208 (Arizona Legal Document Preparers).
Texas excludes software and websites from UPL regulation so long as they carry a disclaimer,
similar to that on LegalZoom’s website, that “the products are not a substitute for the advice of
an attorney.” TEX. GOV’T CODE ANN. § 81.101(c). And, of course, no state has banned the sale
of legal forms, self-help kits, legal document software or document assembly websites.

32

Another less restrictive alternative is to subject persons who sell legal forms or provide a
means for others to fill out forms online to liability in tort for negligence or for failure to meet
other standards of care.

The Thompson Court highlighted this alternative:

“Of course,

respondents by entering their product in the stream of commerce may be liable to the consumers
if they are negligently damaged by the use of the product.” Thompson, 574 S.W.2d at 369.
Commentators favoring civil liability over prohibition have proposed other standards. See, e.g.,
Thomas D. Morgan, Professional Malpractice in a World of Amateurs, 40 ST. MARY’S L.J. 891
(2009) (nonlawyers should be required to provide disclaimers and held to contractual standards).
Enforcing § 484.010 to prohibit LegalZoom from publishing online document
preparation software for consumers would also operate as an illegal prior restraint on
LegalZoom’s speech. "[P]rior restraints on speech and publication are the most serious and the
least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S.
539, 559 (1976). “Any government regulation that limits or conditions in advance the exercise
of First Amendment activity constitutes a form of prior restraint, . . . and any such restraint bears
a ‘heavy presumption against its constitutional validity’.” City of St. Louis v. Kiely, 652 S.W.2d
694, 697 (Mo. App. 1983) (citations omitted).
Even if the Court were to conclude that § 484.010 as applied to LegalZoom’s website is a
content-neutral rather than content-based regulation, the statute still would not withstand the
intermediate scrutiny applicable to such regulations. Under intermediate scrutiny, a “contentneutral regulation will be sustained under the First Amendment if it advances important
governmental interests unrelated to the suppression of free speech and does not burden
substantially more speech than necessary to further those interests.” Turner Broad. Sys., Inc. v.
FCC, 520 U.S. 180, 189 (1997). The “important government interest” behind § 484.010 is not to

33

support a monopoly on legal document services by means of a broad ban on the use of legal
forms and computer software to fill them in. Rather, it is to protect the public from harm.
Thompson, 574 S.W.2 at 367. Yet, there are no allegations in this case that LegalZoom customer
was ever harmed by a flawed or ineffective LegalZoom document or service.
Moreover, even content-neutral regulations cannot completely ban a class of speech. City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). Applying the UPL statute as
plaintiffs request would broadly ban the internet sale of blank legal forms and the use of
computer software that allows persons to fill in legal forms. It would therefore apply not just to
LegalZoom’s website, but also to software sold in Missouri office stores, like Quicken
WillMaker Plus 2011 and Quicken Legal Business Pro 2011 — and even to the CD-ROMs of
forms sold on the Missouri Bar CLE Department’s website. (SOF 67-75.)
Thus, under either intermediate or strict scrutiny, applying § 484.010 to LegalZoom’s
website would transgress the First Amendment.
2.

Other Constitutional Constraints Counsel Against Applying the UPL
Statute to LegalZoom.

In 1824 Chief Justice Marshall wrote that “[n]atural persons may appear in Court, either
by themselves, or by their attorney.” Osborn v. Bank of U.S., 22 U.S. 738, 829 (1824). The right
to represent oneself in federal courts is enshrined in 28 U.S.C. § 1654, the predecessor to which
was “enacted by the First Congress and signed by President Washington one day before the Sixth
Amendment was proposed.” Faretta v. California, 422 U.S. 806, 812-813 (1975).
In Faretta, which recognized the right of the accused to proceed without counsel in a
state criminal trial, the Supreme Court traced the right to self representation to mistrust of the
English Crown’s “cringing Attorneys-General and Solicitors-General” and “the arbitrary Justices

34

of the King’s Court.” Id. at 826. Indeed, the Court credited this self-reliant, anti-lawyer
sentiment with incubating the Constitution itself. Id. at 827.
Two years after Faretta, the Supreme Court applied that case in the civil context, holding
that “most legal services may be performed legally by the citizen for himself.” Bates v. State
Bar of Ariz., 433 U.S. 350, 382 (1977). As Dean Powell points out, form books and books
containing information about the law for nonlawyers have been published for centuries precisely
to aid citizens who choose to exercise their right to represent themselves. (SOF 60.) Applying
the UPL statute to LegalZoom would hinder those citizens who desire to us LegalZoom materials
to represent themselves.
Applying § 484.010.2 to LegalZoom would also violate due process. Statutes must “give
the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Because § 484.020.2 makes violations
of § 484.010 misdemeanors punishable by fine, the latter section is subject to the strict scrutiny
applied in civil cases to statutes containing criminal provisions. Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); United States v. Articles of Drug, 825
F.2d 1238 (8th Cir. 1987). Such heightened scrutiny applies even where the statute creates only
a misdemeanor or levies relatively small fines. See Women’s Med. Ctr. v. Bell, 248 F.3d 411,
422 (5th Cir. 2001); Haskell v. Washington Twp., 635 F. Supp. 550, 561 (S.D. Ohio 1986), rev’d
on unrelated grounds by Haskell v. Washington Twp., 864 F.2d 1266 (6th Cir. 1988). Viewed
another way, the statute should be construed under the rule of lenity. Kasten v. Saint-Gobain
Performance Plastics Corp., No. 09-834, 2011 WL 977061, at *10 (U.S. March 22, 2011).
Under this standard, § 484.010.2 cannot constitutionally be applied to invalidate
LegalZoom’s conduct.

Thompson held that the statute does not prohibit nonlawyers from

35

creating, publishing, distributing, advertising, and selling “kits” containing blank forms and
instructions, including information about the law. Yet plaintiffs now ask the Court to interpret
the “assisting” language of the same statute to ban functionally equivalent conduct. Dictionary
definitions of the word “assist” are no help. Under any definition, “assist” would seem to
include the conduct that the Thompson Court’s holding left outside the statute’s language of
“assisting in the drawing for consideration of a document relating to secular rights.”
Nor did prior case law put LegalZoom on notice that its conduct might be wrongful.
Quite the contrary, Missouri cases subsequent to Thompson have not overruled or even
questioned the decision; one of them, Mid-America Living Trust, affirmed its continuing validity.
927 S.W.2d at 859. Further, as discussed above, those subsequent cases are distinguishable from
the instant case and could not have been foreseen as representing a retraction of Thompson.
Section 484.010.2 and the cases construing it do not define the conduct prohibited by the statute
so that a reasonable person would understand the statute to prohibit operating an internet website
that sells blank forms and provides a platform by which customers can fill out forms.
In sum, application of § 484.010 to reach LegalZoom’s publication of online document
preparation software on its website would violate the First Amendment and would implicate
constitutional rights to self-representation and due process. Accordingly, the Court should
construe the statute so as to avoid these constitutional questions. Planned Parenthood of MidMo. & E. Kan., Inc. v. Dempsey, 167 F.3d 458, 461 (8th Cir. 1999).
C.

At A Minimum, Thompson Trumps Any Interpretation of the UPL Statute
That Would Suggest a Contrary Result.

In Eisel, the Missouri Supreme Court held that Missouri’s UPL statute, while advisory
and informative, is not ultimately determinative of what constitutes the unauthorized practice of
law: “Such statutes are merely in aid of, and do not supersede or detract from, the power of the

36

judiciary to define and control the practice of law.” 230 S.W.3d at 338-39. The Court therefore
invited courts to compare the conduct of a party claimed to be in violation of the UPL statute to
conduct the Supreme Court has previously held not to be the unauthorized practice of law:
“Thus, one who may be in violation of the text of section 484.020 may defend a claim under the
statute by showing a conflict between the text and activities that this Court has determined to be
the authorized practice of law.” Id. at 339.
Therefore, irrespective of the Missouri UPL statute, this Court should be guided by the
four-square ruling in Thompson and grant summary judgment to LegalZoom.4
IV.

APPLICATION OF THE MISSOURI UPL STATUTE TO PATENT AND
TRADEMARK APPLICATIONS IS PREEMPTED.
As noted earlier, the Missouri UPL statute does not reach LegalZoom’s publishing of a

website on which customers can create their own documents, and if construed to encompass such
activity, it would violate the First Amendment.

Further, among the LegalZoom products

challenged by plaintiffs are trademark applications and applications for provisional, design, and
utility patents. (SOF 6.) Application of the Missouri UPL statute to these products is preempted
by the conflict with federal law and regulations authorizing nonlawyers to prepare and to assist
others with these documents.
Federal law governs practice before federal government agencies such as the United
States Patent and Trademark Office (the “PTO”) and preempts state law. In Sperry v. Fla. ex rel.
Fla. Bar, 373 U.S. 379 (1963), the Supreme Court accepted the premise that the preparation and
prosecution of patent applications for others constitutes the practice of law. Id. at 383. But the
Court held that the statute and regulations authorizing practice before the Patent Office by
4

Alternatively, since the unauthorized practice of law is for the judiciary to determine, this
Court would seem to have the inherent authority to decide that LegalZoom’s activities do not
constitute the unauthorized practice of law in the Western District of Missouri.

37

nonlawyers meant that Florida could not enjoin a nonlawyer from preparing and prosecuting
patent applications. Id. at 404. The Court rested this preemption on the ground that:
A State may not enforce licensing requirements which, though valid in the
absence of federal regulation, give ‘the State’s licensing board a virtual power of
review over the federal determination’ that a person or agency is qualified and
entitled to perform certain functions, or which impose upon the performance of
activity sanctioned by federal license additional conditions not contemplated by
Congress.
Id. at 385 (footnotes omitted).
In 35 U.S.C. § 2(b)(2)(D), Congress authorized the PTO to prescribe regulations
“govern[ing] the recognition and conduct of agents, attorneys, or other persons representing
applicants or other parties before the Office.” For both patent and trademark matters, the PTO
has expressly addressed the issue of whether one must be a lawyer to represent another in
connection with applications. In both areas it has provided that lay persons may file their own
applications and can assist others in preparing and filing applications.
For patents, 37 C.F.R. § 1.31 states that an applicant may file and prosecute his own case
or “may give a power of attorney so as to be represented by one or more patent practitioners or
joint inventors.” A joint inventor obviously need not be a lawyer, and “patent practitioner” is
defined to include nonlawyers.

Id. §§ 1.32(a) and 11.6(b) and (c).

The regulations also

authorize the PTO to allow a nonregistered nonlawyer to serve as a patent agent on designated
applications.

Id. § 11.9(a).

For non-patent matters, the regulations authorize an array of

nonlawyers to practice: certain nonlawyer agents (§ 11.14(b)); various foreigners (§ 11.14(c));
anyone appearing on his own behalf (§ 11.14(e)); and any corporate officer, firm member or
partner of an entity with a trademark proceeding pending before the PTO (§ 11.14(e)).
Missouri cannot regulate or penalize practices permitted by the federal government.
Application of the Missouri UPL statute to LegalZoom represents the imposition of “additional

38

conditions” on the preparation of patent and trademark applications not contemplated by
Congress or the PTO. See also Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334, 1340
(Fed. Cir. 2005) (“the states cannot regulate practice before the PTO”).
Nor may the Supremacy Clause be shrugged off because the Code of Federal Regulations
has not expressly addressed the use of computer-completed forms.

As the Third Circuit

observed in barring Pennsylvania’s effort to prohibit a suspended lawyer from maintaining an
office for federal practice, “[i]f preemption only applied to state laws that directly contradict
federal laws, federal laws could be effectively nullified by state laws prohibiting those acts that
are incident to, but not specifically authorized by, federal law.” Surrick v. Killion, 449 F.3d 520,
532 (3d Cir. 2006). Rather, the Third Circuit held that state law cannot regulate activities
‘“reasonably within the scope’ of the federally-conferred license to practice law.” Id. at 533,
quoting Sperry, 373 U.S. at 402 n.47. See Casey v. FDIC, 583 F.3d 586, 595 (8th Cir. 2009)
(Missouri UPL and MMPA claims against mortgage lenders charging a fee to prepare loan
documents were preempted by regulation that addressed “loan-related fees” because the
preparation of the legal documents was part of the process of originating the loans).
Even if we assume, arguendo, that LegalZoom’s provision of customer-generated patent
and trademark applications through the use of computers somehow constituted the practice of
law, it is reasonably within the scope of the federal authorization for self-practice and practice by
nonlawyers before the PTO. The federal government is aware that LegalZoom facilitates filings
of such applications. These products are subject to the PTO’s regulations, and therefore the
application of the UPL statute to these LegalZoom products is preempted.

39

V.

BECAUSE PLAINTIFFS’ OTHER CLAIMS DEPEND ON THE UPL CLAIM,
LEGALZOOM SHOULD BE GRANTED SUMMARY JUDGMENT ON THEM.
The other claims in the Petition depend upon plaintiffs’ UPL claim. Count II alleges that

plaintiffs “who paid LegalZoom for the preparation of legal documents without proper
authorization are entitled to” get their money back. Petition ¶ 44, Doc. 1-1 at 18. Count III
alleges that LegalZoom violated the MMPA by “suggest[ing] that its customers did not need to
consult a lawyer in order to receive a variety of legal services and documents which LegalZoom
provided.” Id. ¶ 48, Doc. 1-1 at 19. Count IV is premised on LegalZoom’s “continu[ing] to
collect money from Missouri consumers for a service that it is specifically prohibited from
performing.” Id. ¶ 56, Doc. 1-1 at 21.
Under Missouri law, a determination that a defendant is entitled to summary judgment on
the predicate substantive count is also “dispositive of [Plaintiffs’] claims that Defendants were
unjustly enriched and violated the MMPA . . . .” Rokusek v. Sec. Title Ins. Co., No. ED 88953,
2007 WL 1814294, at *3 (Mo. App. June 26, 2007), superseded on unrelated grounds by
Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 929 (Mo. 2008).
Likewise, “only after a claimant has successfully brought suit for actual damages . . . may the
court consider awarding . . . ‘equitable relief.’” Freeman Health Sys. v. Wass, 124 S.W.3d 504,
509 (Mo. App. 2004). Therefore, because LegalZoom is entitled to judgment as a matter of law
on Count I, the Court should therefore grant LegalZoom summary judgment on Counts II, III,
and IV as well.
CONCLUSION
For the reasons stated herein, the Court should grant LegalZoom’s motion for summary
judgment.

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Respectfully submitted,
BRYAN CAVE LLP
By: s/ Robert M. Thompson
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for LegalZoom.com, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on April 8, 2011, I electronically filed the above and foregoing with
the clerk of court using the CM/ECF system, which will send notice of electronic filing to all
counsel of record.

s/ Robert M. Thompson

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